Result of U.P. Higher Judicial Service (Main Written) Examination, 2014 Direct Recruitment to U.P. Higher Judicial Service held on 14th, 15th and 16th November, 2014 has been declared. High Court of Madhya Pradesh, Jabalpur notified Advertisement for recruitment additional district judges through M.P. Higher Judicial Service (Entry Level) Direct Recruitment for BAR, Exam 2015 Haryana Judicial Services Examination 2014-Pre is conducted on 10th of Jan 2015. The result is awaited. THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT.
HIGH COURT JUDGEMENT
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  Date 11/6/2013 12:00:00 AM
  Court Guwahati High Court
  Parties
  Appeal -
  Act -
  Judgement
 

IN THE GAUHATI HIGH COURT AT GUWAHATI 
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH) 
 
 
W. A. No. 119 OF 2008
IN 
W. P. (C) No. 6877 OF 2005

Sh Navendra Kumar,
Son of Late Sh. Ram Mohan Lal,
R/O 108 Vidya Vihar Apartment,
Plot No. 48, Sector-9, Rohini,
Delhi – 110085.     ----- Appellant  
Versus 
Union of India & Another   ----- Respondents 
 
BEFORE
THE HON’BLE MR. JUSTICE IA ANSARI 
THE HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH

For the appellant:    Dr. LS Choudhury,  
        
Mr. DS Choudhury, Mr. RP Singh, 
Advocates

For the respondents: Mr. PP Malhotra, Addl. SGI.
Date of Hearing    : 08.10.2013
Date of judgment    : 06.11.2013 
 
JUDGMENT AND ORDER
(IA Ansari, J) 
“When the people fear the government, there is tyranny. When the 
government fears the people, there is liberty.”
 
Thomas Jefferson, the principal author of
the Declaration of Independence (1776) and the
third President of the United States (1801–1809) 
2. Article 21 is one of the most cherished provisions in our 
Constitution, which prohibits the State from depriving a person of 
his life and liberty except according to the procedure established by 
 2 
law. However, what happens if by the State’s action, which has been 
neither sanctioned by a legislation nor has been taken in valid 
exercise of its executive powers, the ineffaceable mandate of Article 
21 gets smudged.  This is precisely the issue, which the appellant has 
been, for almost a decade of litigation, urging the court to decide. 
Having been unsuccessful in his attempt to convince the Court in his 
writ petition of the correctness and righteousness of his contentions, 
the appellant is, now, before us, seeking a revisit to his submissions. 
2a. Some of the prominent questions, which have arisen for
determination, in this appeal, are:
 
(i) Whether ‘Central Bureau of Investigation’, popularly called CBI, is a
constitutionally valid police force empowered to ‘investigate’ crimes?
 
(ii) Could a ‘police force’, empowered to ‘investigate’ crimes, have been
created and constituted by a mere Resolution of Ministry of Home
Affairs, Government of India, in purported exercise of its executive
powers?
 
(iii) Could a ‘police force’, constituted by a Home Ministry Resolution,
arrest a person accused of committing an offence, conduct search and
seizure, submit charge-sheet and/or prosecute alleged offender?
 
(iv) Whether CBI is a ‘police force’ constituted under the Union's 
Legislative powers conferred by List I Entry 8?
 
(v) Do Entry 1 and 2 of the Concurrent List empower the Union
Government to raise a ‘police force’ and that, too, by way of Executive
instructions of Union Home Ministry?
 
 3 
(vi) Whether Delhi Special Police Establishment Act, 1946, empowers
the Union Home Ministry to establish a ‘police force’ in the name of
CBI?
 
(vii) Above all, is it permissible for the Executive to create a ‘police force’
with power to ‘investigate’ crimes in exercise of its executive powers,
when exercise of such a power adversely affects or infringes
fundamental rights embodied in Part III of the Constitution, particularly,
Article 21?
 
 
3. The present appeal has arisen out of the judgment and order, 
dated 30-11-2007, passed, in Writ Petition (Civil) No. 6877 of 2005, by a 
learned Single Judge of this Court dismissing the writ petition, 
whereby the writ petitioner had sought for, inter alia, (i) quashing of 
the impugned Resolution No. 4/31/61-T, dated 01-04-1963, whereunder 
the Central Bureau of Investigation stands established, as ultra vires the 
Constitution of India and (ii) quashing of the criminal 
proceeding/prosecution, which originated from the FIR/RC No. 
39(A)/2001/CBI/SIL and is presently pending against the petitioner, in 
the Court of Special Judge (C.B.I), Assam, at Guwahati. 
4. The material facts, which have given rise to the present appeal, 
may, in brief, be set out as under: 
 (i) A criminal case being RC No. 39(A)/2001/CBI/SIL was 
registered, on 31-07-2001, under Sections 120B IPC/420 IPC and Section 
13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 
1988, in the office of the Superintendent of Police, Central Bureau of 
Investigation (hereinafter referred to as ‘CBI’), Silchar, Assam, against 
 4 
the petitioner, who is an employee of Mahanagar Telephone Nigam 
Limited, New Delhi. Having investigated the case, the CBI laid a charge 
sheet, dated 25-11-2004, in the Court of the learned Special Judge, CBI, 
Assam, Kamrup, Guwahati.  
(ii) With the help of the writ petition, bearing WP(C) No. 6877 
of 2005 aforementioned, the constitutional validity of the very 
formation of the CBI and its powers to carry out the functions of police, 
namely, registration of First Information Report (in short, ‘FIR’) under 
Section 154 of the Code of Criminal Procedure (hereinafter referred to 
as the ‘Cr.P.C’), arrest of a person, as an accused, investigation of 
offences, filing of charge-sheets against alleged offenders and to 
prosecute them were put to challenge.  
(iii) The two substantive prayers, made by the petitioner-
appellant, were as follows: 
 
“(i) quash the impugned Resolution No. 4/31/61-T, dated 01-04-1963, as
ultra vires the Constitution of India, by way of an appropriate writ, order or
direction in the nature of certiorari and 
(ii) quash the criminal proceeding/prosecution originated from the FIR/RC
No. 39(A)/2001/CBI/SIL pending against the petitioner in the court of
Special Judge (C.B.I) for Assam at Guwahati, by way of an appropriate writ,
order or direction in the nature of certiorari.” 
(iv). The constitutional validity of the formation of the CBI and 
its powers to investigate and function as a police force and/or its powers 
to prosecute an offender were challenged, in the writ petition, by 
contending that the CBI is not a statutory body, the same having been 
constituted not under any Statute, but under an Executive 
Order/Resolution No. 4/31/61-T, dated 01-04-1963, of the Ministry of 
 5 
Home Affairs, Government of India, though police is a State subject 
within the scheme of the Constitution of India inasmuch as it is only a 
State Legislature, which, in terms of Entry No. 2 of List-II (State List) of 
the Seventh Schedule to the Constitution of India, is competent to 
legislate on the subject of police and, therefore, the Central Government 
could not have taken away the power, which so belongs to State 
legislatures, and create or establish an investigating agency, in the 
name of CBI, adversely affecting or offending the fundamental rights, 
guaranteed under Part III of the Constitution of India. 
(v). To substantiate the above contention, reliance was placed 
on the Constituent Assembly debates, dated 29-08-1949, wherein Dr. 
BR Ambedkar had clarified that the word ‘investigation’, appearing in 
Entry 8 of List I (Union List) of the Seventh Schedule, which read, 
“Central Bureau of Intelligence and Investigation”, would not permit 
making of an ‘investigation’ into a crime by the Central Government 
inasmuch as ‘investigation’ would be constitutionally possible only by a 
police officer under the Cr.P.C., police being exclusively a State subject 
and the word ‘investigation’, appearing in Entry 8 of List I (Union List), 
would, in effect, mean making of merely an ‘enquiry’ and not 
‘investigation’ into a crime as is done by a police officer under the Code 
of Criminal Procedure. The word `investigation’ is, therefore, according 
to the Constituent Assembly Debates, intended to cover general 
enquiry for the purpose of finding out what is going on and such an 
investigation is not an investigation preparatory to the filing of a charge-
 6 
sheet against an offender, because it is only a police officer, under the 
Criminal Procedure Code, who can conduct ‘investigation’.   
(vi). In the writ petition, the Union of India did not file any 
response; but the CBI, as respondent No. 2, filed an affidavit, wherein 
it claimed that it had been exercising functions and powers of police 
under the Delhi Special Police Establishment Act, 1946. In its affidavit, 
filed in the writ petition, the CBI further submitted that the CBI has 
had been functioning for more than four decades, but its constitutional 
validity has never been challenged by any one and, hence, this settled 
position may not be unsettled.  
(vii). By the impugned judgment and order, dated 30-11-2007, a 
learned Single Judge of this Court dismissed the writ petition holding 
thus, “.................. not only the Delhi Special Police Establishment Act is a 
valid piece of legislation, as originally enacted, but the same has been validly 
continued after coming into force of the Constitution and is in harmony with 
the provisions thereof and, therefore, the said legislation validly continues to 
hold the field”  
5. Aggrieved by the order, dated 30-11-2007, aforementioned, the 
writ petitioner has preferred the present writ appeal.  
6. We have heard Dr. LS Choudhury, learned counsel for the 
appellant, and Mr. PP Malhotra, learned Additional Solicitor General 
of India, appearing on behalf of the respondents. We have also heard 
Mr. N Dutta, learned Senior counsel, who has appeared as Amicus 
Curiae. 
 7 
SUBMISSIONS ON BEHALF OF THE PETITIONER: 
7. It is submitted by Dr. LS Choudhury, learned counsel for the 
appellant, that the CBI is a non-statutory body inasmuch as it has been 
constituted by way of an Executive Order/Resolution, dated 01.04.1963, 
issued by the Ministry of Home Affairs, Government of India, and not 
by making any legislation.  
8. According to Dr. Choudhury, learned counsel for the appellant, 
in the absence of any law laying the birth of the CBI, the exercise of 
powers of police, by the said organization, such as, registration of First 
Information Reports, arrests of persons, ‘investigation’ of crimes, filing 
of charge sheets and prosecution of the offenders cannot be permitted, 
for, allowing the CBI to do so would offend the fundamental rights 
guaranteed under Article 21 of the Constitution of India, which 
expressly provides that no person shall be deprived of his life and 
liberty except according to the procedure established by law.  
9. The word ‘law’, within the meaning of Article 21, would, 
according to the learned counsel for the appellant, mean legislation and 
not executive instructions or executive fiat, such as, the one, whereunder 
the CBI has been created and established inasmuch as no executive 
instructions can be acted upon if any such instructions violate or offend 
the fundamental rights guaranteed under Part III of the Constitution of 
India. 
10. It is the submission of the learned counsel for the appellant that 
at best, the CBI may be treated to have been constituted by the Central 
 8 
Government under Entry 8 of the List-I (Union List); but there is no co-
relation between the Entry 8 of List I and Entry 2 of List II inasmuch as 
Entry 8 of List I does not, in the light of the Constituent Assembly 
Debates, permit ‘investigation’ of a crime in the manner as is, ordinarily, 
done by the police; whereas Entry 2 of List II permits enactment of 
laws relating to police. According to the learned counsel for petitioner, 
both these entries are separate and distinct from each other and that 
the framers of the Constitution were well aware of the fact that they 
were enabling the Centre and State to create two separate authorities, 
one, which would be covered by Entry 8 of List I, and the other, which 
would be covered by Entry 2 of List II, and while ‘investigation’, under 
Entry 2 of List II, would mean an ‘investigation’ preparatory to the filing 
of a police report, commonly called charge-sheet or final report, under 
Section 173 (2) (i) of the Cr.PC, the other ‘investigation’ would be in the 
form of merely an enquiry and not an investigation, which is conducted 
by a police officer under the Cr.PC. Support for these submissions, as 
mentioned hereinbefore, is sought to be derived by Mr. Choudhury 
from the debates of the Constituent Assembly.  
11. In short, what is contended, on behalf of the appellant, by Dr. LS 
Choudhury, learned counsel, is that though Parliament is competent to 
make law on the Central Bureau of Intelligence and Investigation, the 
CBI, which is constituted under the Resolution No.4/31/61-T, dated 
01.04.1963, cannot carry out functions of police inasmuch as the 
Constitutional scheme does not permit the Central Government to 
 9 
carry out functions of police and the police functions, according to Dr. 
LS Choudhury, lies within the exclusive domain of the State 
Government concerned.    
12. Yet another leg of argument of Dr. Choudhury, learned counsel 
for the petitioner, is that even Delhi Special Police Establishment Act, 
1946 (in short, ‘the DSPE Act, 1946’) is ultra vires the Constitution, for, it 
offends, according to Mr. Choudhury, Article 372 of the Constitution 
inasmuch as Parliament is not competent to make law on police for 
whole of India and it is only a State legislature, reiterates Mr. 
Choudhury, which can make, or could have made, law, on police by 
taking resort to Entry No.2 in the State List (List II).  Thus, the DSPE 
Act, 1946, submits Dr. Choudhury, cannot continue anymore inasmuch 
as its continuance violates the basic Constitutional scheme. 
13. Reverting to the Constitution, Dr. LS Choudhury submits that 
though Parliament, too, is competent to make law on any of the 
subjects/entries mentioned in List-II, yet, such laws can be made only 
for Union Territories inasmuch as these territories do not have their 
own legislature and according to Article 239 of the Constitution of 
India, the laws, enacted by Parliament for Union Territories, are to be 
administered through an administrator.  It is submitted by Mr. 
Choudhury, learned counsel, that the power to make laws is one thing 
and the administration of those laws is quite another and it is not vice 
versa. Though Parliament may make law, for Union Territories, on the 
State subjects, the fact remains that the administration of these laws, 
 10 
reiterates Dr. Choudhury, has to be through an administrator 
appointed under Article 239 and not by the Central Government.  

14. Learned counsel for the petitioner, while drawing an analogy 
with the police administration in Delhi, submits that Section 3 of Delhi 
Police Act, 1978, which is an Act of the Parliament, provides that there 
shall be ‘one’ police force for whole of Delhi and, thus, according to Dr. 
LS Choudhury, there cannot be more than one police force functioning 
in Delhi, particularly, when, points out Dr. Choudhury, the police 
forces, functioning in Delhi, immediately before commencement of this 
Act (i.e., Delhi Police Act, 1978), shall, in the light of the provisions of 
Section 150 of Delhi Police Act, 1978, be deemed to have come under 
the Delhi Police Act, 1978; whereas the CBI is, admittedly, not a ‘force’ 
functioning under the Delhi Police Act, 1978. At least, since after 
coming into force of Delhi Police Act, 1978, the CBI cannot, in the light 
of the provisions of Section 150 of Delhi Police Act, 1978, legally 
function as a police force and conduct any ‘investigation’ preparatory to 
filing of charge sheets as envisaged by the Code of Criminal Procedure.  
15. Dr. Choudhury points out that in terms of Section 4 of Delhi 
Police Act, 1978, the Administrator is the executive Head of police in 
Delhi and the laws, relating to police, are required to be administered 
through him. The Central Government has, therefore, according to Mr. 
Choudhury, no role to play in the day to day functioning of the police 
in Delhi.    
 11 
16. Seeking to derive strength from the debates of the Constituent 
Assembly, as reflected above, it is the submission of Dr. Choudhury, 
learned counsel for the petitioner, that even if the CBI is considered to 
be a validly constituted body, it cannot function in the manner as is 
done by the police under the scheme of the Code of Criminal 
Procedure and the CBI, so constituted, can, at best, collect information 
by making ‘enquiries’ to assist any investigation carried out by a local 
police.  
 
SUBMISSIONS OF THE CBI 
 
17. Resisting the writ petition, what the learned ASG, appearing on 
behalf of the CBI, submits, may be summarized as follows: 
A) That the CBI derives its power to ‘investigate’, like a police force, 
as contemplated by the Cr.PC, from the DSPE Act, 1946; 
B) That the CBI is only a change of the name of the DSPE and the 
CBI is, therefore, not an organization independent of the DSPE; 
C) That as per Section 5 of the DSPE Act, the Central Government 
may extend the powers and jurisdiction of the members of Delhi Police 
Establishment to investigate an offence beyond the territorial limits of 
Delhi and as per Section 6 of the DSPE Act, 1946, the members of the 
Delhi Police Establishment can exercise powers and jurisdiction in any 
area of any other State with the consent of the Government of that 
State;  
D) That the creation of CBI may also be taken to have been covered 
by Entry 80 of List I (Union List) of the Seventh Schedule to the 
 12 
Constitution of India inasmuch as the expression, “Central Bureau of 
Intelligence and Investigation”, occurring in Entry 8 of List I (Union List), 
may be read to mean two different agencies, namely, Central Bureau of 
Intelligence and Central Bureau of Investigation and, for this purpose, the 
word “and”, appearing in the expression, “Central Bureau of Intelligence 
and Investigation”, may be read as “or”. 
E) Under Article 73 of the Constitution of India, the executive 
powers of the Union extends to matters with respect to which 
Parliament has the power to make laws and the resolution, dated 
01.04.1963, whereunder CBI has been constituted, can be treated to 
have been issued by virtue of Union of India’s executive powers as 
embodied in Article 73; 
F) That the Central Government can also be treated to have 
constituted the CBI by taking recourse to its powers as specified in 
Entry 1 and 2 of List –III (Concurrent List) of the Seventh Schedule to 
the Constitution of India;  
G) That the Constitutional validity of Delhi Police Establishment 
Act, 1946, has already been upheld by the Supreme Court in Advance 
Insurance Co. vs. Gurudasmal, reported in (1970) 1 SCC 633, and the 
history  of formation of the CBI has been highlighted by the 
Constitution Bench, in State of West Bengal & Ors. Vs.  Committee for 
Protection of Democratic Rights, West Bengal & Ors. reported in 
(2010) 3 SCC 571, and also by a three Judge Bench in M.C. Mehta (Taj 
 13 
Corridor Scam) Vs. Union of India and others, reported in (2007) 1 
SCC 110; 
H) That since the CBI has been functioning for the last 50 years 
under the DSPE Act, 1946, it may not be sound or proper exercise of 
discretion to unsettle the settled law and thereby  create turmoil 
‘unnecessarily’; 
(I) Repelling the plea of the respondents that the CBI is constituted 
under Delhi Special Police Establishment Act, 1946, Dr. LS Choudhury, 
learned counsel for the petitioner, submits that the plea is not tenable 
for the following reasons:  
i) First, there is no co-relation between the DSPE Act, 1946, and CBI. In
DSPE Act, the word ‘CBI’ is, nowhere, mentioned, even though the
DSPE Act has undergone several amendments. This apart, even the
Executive Order, dated 1
st
 April, 1963, does not disclose that the CBI 
has been constituted under DSPE Act. Had it been so, the impugned
Resolution would have so mentioned.    

ii) Secondly,  the plea, that the CBI is merely a change of name of the 
 
DSPE, cannot stand scrutiny of law inasmuch as the DSPE Act, 1946,
specifically mentions, under Section 2, that the police force, constituted
under the DSPE Act, shall be called “Delhi Special Police
Establishment”. Hence, when the DSPE Act itself defines the name of
the force, which the DSPE Act, has created and established, the
argument that the CBI is merely a change of name of the DSPE cannot
hold water.   Had it been so, the name of the DSPE ought to have been
changed in the DSPE Act itself; more so, when several amendments
have, otherwise, been introduced into the DSPE Act. 
iii) Thirdly, though Union of India’s executive powers may, in the light of
Article 73, be co-extensive with its legislative powers, the fact remains
that the executive powers cannot be exercised offending fundamental
rights, guaranteed by Part III, unless the exercise of such executive
powers is backed by appropriate legislation; but, in the cast at hand, the
resolution, dated 01-04-1963, whereunder CBI has been constituted, is
not backed by any legislation. 
 
 
SUBMISSIONS OF THE AMICUS CURIAE  
 14 
 
18. Mr. N. Dutta, learned Amicus Curiae, has submitted that the 
impugned Resolution, dated 01.04.1963, clearly shows that the CBI has 
been constituted for achieving six specified purposes as have been 
mentioned in the Resolution itself and till date, no statute has been 
enacted by Parliament establishing a body called CBI. Since there is no 
legislation constituting the CBI, the CBI’s constitutional validity, 
according to the learned Amicus Curiae, has to be tested in the light of 
the provisions embodied in the Constitution of India.  
19. It is also submitted by the learned Amicus Curiae that the CBI 
and the DSPE are not one and the same thing, but everybody appears 
to have proceeded on the basis that the CBI and DSPE are one and the 
same thing. Whereas DSPE has been established under the DSPE Act, 
1946, the CBI, points out learned Amicus Curiae, has been constituted 
by a mere executive fiat.  
20. It has been further submitted by the learned Amicus Curiae that 
though the CBI has been empowered under the impugned Resolution, 
dated 01.04.1963, to ‘investigate’ crimes, no power has been specifically 
provided for ‘prosecution’ of offenders by the CBI. In fact, points out 
the learned Amicus Curiae, even under the DSPE Act, 1946, DSPE can 
merely ‘investigate’ a case and lay charge-sheet and, hence, the CBI’s role 
shall come to an end once ‘investigation’ is complete.  
21. Referring to the case of Vineet Narayan, Mr. Dutta, learned 
Amicus Curiae, points out that in Vineet Narayan’s case (supra), the 
Supreme Court has recommended establishment of an independent 
 15 
directorate of prosecution for the CBI and till such time, a directorate is 
so established, the Supreme Court has directed that the Attorney 
General of India shall nominate a panel of advocates to conduct the 
prosecution. However, notwithstanding the directions, so given, 
prosecution, contends the learned Amicus Curiae, is being conducted by 
the CBI, through its appointed advocates, though it lacks jurisdiction 
to do so. 
22. It has been pointed out by the learned Amicus Curiae that in 
terms of Section 36 of the Cr.PC, police officers, superior in rank to an 
officer-in-charge of a police station, may exercise the same powers, 
throughout the local area to which they are appointed, as may be 
exercised by such officer within the limits of his station. It has also 
been pointed out by the learned Amicus Curiae that under Section 2(c) 
of the DSPE Act, 1946, a member of the DSPE may, subject to any 
order, which the Central Government may make in this behalf, exercise 
any power of the Officer-in-Charge of a police station in the area, 
which he is, for the time being, posted to, and, when so exercising the 
powers, he shall be subject to any such orders, which may be made by 
the Central Government and be deemed to be an Officer-in-Charge of a 
police station discharging the function of an officer within the limits of 
his station. If the expression, “Officer-in-Charge of a police station”, 
appearing in Section 2(c) of the DSPE Act, 1946, is read together with 
Section 36 of the Cr.P.C, then, it would become clear, according to 
learned Amicus Curiae, that an officer of the DSPE, while functioning in 
 16 
any State, shall be subordinate to the superior officers of the State 
police; whereas, in the case of CBI, while investigating a case, in any 
State, purportedly, by virtue of its powers under Section 5 read with 
Section 6 of the DSPE Act, 1946, the CBI investigators reports to their 
own hierarchy of officers and not to the superior police officers of the 
police station within whose local jurisdiction he, as a CBI officer, may 
be investigating a case. 
 
QUERIES RAISED BY THE COURT
23. After hearing the parties as well as the learned Amicus Curiae this 
court raised the following queries: 
1) If a Pre-constitutional law was made on a subject, which is,
now, covered by State List, whether the law will be valid after
the Constitution has come into force bearing in mind Article
372? 
2) Whether a law can be made by Parliament, on a subject covered
by the State List, in respect of a Union Territory, after the
Constitution has come into force? 
3) The Executive power of the State is co-extensive with its
legislative power. Is it, therefore, possible to constitute an
investigating agency by a State taking recourse to State’s
executive Power ? 
4) Delhi was a Part-C State under the Govt. of India Act. On
coming into force of the Constitution, it was made a Union
Territory and it has, now, the status of a State, but some of its
powers, under the State List, are exercised by Parliament. The
Court wants to know details of the legislative history of the
present status of Delhi, as a State, and its legislation making
process.        
(Emphasis added) 

24. In response to the queries raised by the Court, the appellant as 
well as the CBI have filed their respective written replies/submissions. 
The CBI has also filed an additional affidavit stating, at para 6 thereof, 
 17 
that vide resolution, dated 01.04.1963, the DSPE has been made an 
integral part of the CBI. The said para 6 is reproduced hereinbelow: 
“6. That in exercise of its executive powers  vide Resolution
NO.4/31/61-T dated 1
 April, 1963 of Ministry of Home Affairs, the
Government of India set up an organization named Central Bureau of
Investigation consisting of 6 (six) Divisions. One of the division of the
organization is Investigation and Anti-Corruption Division (Delhi
Special Police Establishment). Thus, the DSPE by way of this
resolution has been made an integral part of CBI in its original form as
established under the DSPE Act, 1946.” 
st

25. As this Court noticed that the Central Bureau of Investigation 
was claimed to have been created by a Resolution, dated 01.04.1963, of 
the Government of India, Ministry of Home Affairs, but it was not, 
however, clear if the impugned Resolution had received the assent of 
the President of India, this Court, vide its order, dated 20.01.2013, 
directed the respondents to produce the records relating to the creation 
of the CBI. Though the relevant records have not been produced, in 
original, a copy thereof has been produced by the learned Additional 
Solicitor General and has been perused by the Court and the parties 
concerned inasmuch as the learned Additional Solicitor General had 
made it clear to this Court that the said records were no longer 
classified documents, the same having been obtained from the 
National Archives and could, therefore, be perused by the parties 
concerned.  
26. Before proceeding further, it is pertinent to note that in response 
to a specific query put by this Court as to whether the issue, raised in 
the petition, with regard to the Constitutional validity of the CBI, can 
 18 
be found to have been raised in any decision of any Court, the learned 
ASG as well the learned Amicus Curiae, with commendable fairness, 
have admitted that in the light of the reported decisions, this issue has 
never been raised, in any case, in any other High Court or the Supreme 
Court. 
27. The points, which, now, falls for determination, is: whether CBI 
is established under the DSPE Act, 1946, or is an organ of the Delhi 
Special Police Establishment Act and, if not, whether a force, with the 
object of investigation of crimes preparatory to filing of charge-sheet for 
prosecution of offender, can be created by the Central Government by 
way of an Executive order/Resolution and whether the CBI can be said 
to be validly created by the Central Government by was of an 
Executive order/Resolution.  
28. Let us consider the first question, namely, whether CBI is 
established under the DSPE Act, 1946, or is an organ of the Delhi 
Special Police Establishment Act. 
WHETHER CBI IS A NON-STATUTORY BODY ? 
29. A statutory body, as the name suggests, is a body, which has a 
legislative sanction. In other words, a body or agency can be termed as 
statutory only when it is created by a statute to carry out certain 
functions.  
30. The petitioner submits that the CBI has not been constituted 
under any law; rather, the same has been created by the Central 
Government by way of Executive Order/ Resolution  No. 4/31/61-T, 
 19 
dated 01.04.1963.  It is further submitted by the petitioner that the 
Central Government cannot create CBI by way of an Executive Order 
and such an agency cannot carry out police functions, i.e., to register 
FIR under Section 154 Cr.P.C., arrest the persons, raid their premises, 
investigate crimes and file charge-sheets against the offenders and/or to 
prosecute them in the Court without being supported by legislation. 
31. The learned ASG, appearing on behalf of CBI, has, on the other 
hand, submitted that though the CBI has been constituted by way of 
Resolution No. 4/31/61-T, dated 01.04.1963, it derives its powers from 
the Delhi Special Police Establishment Act, 1946, and the impugned 
Resolution merely gives a new name, namely, CBI, DSPE, inasmuch as 
the CBI is an organ or part of the DSPE in terms of the DSPE Act, 1946.  
32. The learned Amicus Curiae has fairly submitted that the 
Government of India by an executive order, dated 01.04.1963, has 
constituted a body called “CBI” for six specific purposes as mentioned 
in the said executive order; but till date, there is no statute to give legal 
sanction to the body called “CBI” and, hence, validity of the executive 
order has to be tested under Article 246 and 252 of the Constitution of 
India.  
33. Considering the fact that it has not been in dispute that the CBI 
came into existence by the Resolution No. 4/31/61-T, dated 01.04.1963., 
issued by the Government of India, Ministry of Home Affairs, the 
impugned Resolution, being relevant, is reproduced below: 
“No. 4/31/61-T 
 20 
 
 
GOVERNMENT OF INDIA
MINISTRY OF HOME AFFAIRS 
New Delhi, the 1st April, 1963
 
R E S O L U T I O N

 The Government of India have had under consideration the
establishment of a Central Bureau of Investigation for the investigation
of crimes at present handled by the Delhi Special Police
Establishment, including specially important cases under the Defence
of India Act and Rules particularly of hoarding, black-marketing and
profiteering in essential commodities, which may have repercussions
and ramifications in several States; the collection of intelligence
relating to certain types of crimes; participation in the work of the
National Central Bureau connected with the International Criminal
Police Organization; the maintenance of crime statistics and
dissemination of information relating to crime and criminals; the study
of specialized crime of particular interest to the Government of India or
crimes having all-India or interstate ramifications or of particular
importance from the social point of view; the conduct of Police research,
and the coordination of laws relating to crime.  As a first step in that
direction, the Government of India have decided to set up with effect
from 1st April, 1963 a Central Bureau of Investigation at Delhi with
the following six Divisions, namely:- 
 
(i) INVESTIGATION AND ANTI-CORRUPTION DIVISION.
(DELHI SPECIAL POLICE ESTABLISHMENT). 

(ii) TECHNICAL DIVISION.

(iii) CRIME RECORDS AND STATISTICS DIVISON.

(iv) RESEARCH DIVISION. 

(v) LEGAL DIVISON & GENERAL DIVISION. 

(vi) ADMINISTRATION DIVISION. 
The Charter of function of the above-said Divisions will be as 
given in the Annexure
.  The assistance of the Central Bureau of
Investigation will also be available to the State Police Forces on request
for investigating and assisting in the investigation of interstate crime
and other difficult criminal cases.
 
Sd/- (V. VISWANATHAN)
Secretary to the Government of India” 
 21 
34. The expression “As a first step in that direction”, appearing in 
the impugned Resolution, dated 01-04-1963, goes to show that the CBI 
was constituted as an ad hoc measure to deal with certain exigencies. 
This measure, taken by the Union Government, was not in the form of 
any Ordinance; rather, constitution of the CBI was an executive 
decision and that too, without citing, or referring to, the source of 
power. 
35. We have read and read many a times the impugned Resolution, 
dated 01.04.1963. 
36. On a careful reading of the contents of the impugned Resolution, 
what becomes evident is that the Resolution does not refer to, as 
already indicated above, any provisions of the DSPE Act, 1946, as the 
source of its power. In other words, deriving strength from the DSPE 
Act, 1946, the CBI has not been constituted. One cannot, therefore, treat 
the CBI as an organ or part of the DSPE either.  
37. A cautious reading of the provisions, embodied in the DSPE Act, 
1946, as a whole, clearly reveals that this Act empowers the Central 
Government to constitute a separate police force to be called as Delhi 
Special Police Establishment for investigation of offences, which may 
be notified under Section 3 thereof. Thus, the police force, which may 
be constituted by the Central Government deriving power from the 
DSPE Act, 1946, is, in the light of the provisions of the DSPE Act, 1946, 
can be called Delhi Special Police Establishment, which we have been 
referring to as the DSPE.  
 22 
38. The learned ASG has completely failed to show that the CBI can 
be said to have been established or constituted as an organ or part of 
the DSPE or is a special force, which has been constituted by taking 
recourse to Section 2 of the DSPE Act, 1946. We have, therefore, no 
hesitation in concluding that CBI is not established under the DSPE 
Act, 1946, or is an organ of the Delhi Special Police Establishment . 
39. While considering the question, framed above, it is worth 
noticing that there is no dispute that CBI came into existence with the 
issuance of Resolution, dated 01.04.63. If CBI is an integral part of the 
DSPE, then, such a resolution ought to have been issued by the Central 
Government  in exercise of powers vested in the Central Government 
by the DSPE Act, 1946. In other words, had the CBI been constituted 
under the DSPE Act, 1946, by the Central Government, the CBI could 
have been treated as having been created by way of delegated 
legislation. There is, however, nothing, either in the DSPE Act, 1946, or 
in the impugned Resolution, dated 01.04.1963, to show that the CBI is a 
creation of a delegated piece of legislation. In order to exercise powers 
under delegated legislation, it is necessary that the Statute itself 
empowers the Executive to issue notification/resolution to meet the 
exigencies of time; whereas no such power is vested in the Central 
Government by the DSPE Act, 1946. 
 23 
40. On a reading of the various provisions of the DSPE Act, 1946, the 
executive powers, as endowed by the DSPE Act, 1946, can be pointed 
as follows: 
Section 2:- Central Government may constitute special police force
called DSPE for Union Territory of Delhi.  
Section 3:- Central Government may notify the offences, which may be
investigated by the DSPE 
Section 5:- Central Government may notify the areas, where DSPE can
exercise jurisdiction meaning thereby that if Central Government has
not extended the operation of DSPE to the State of Assam, then even if
the State of Assam consents to an investigation by the DSPE, the
DSPE would not be in a position to investigate. 
41. The following aspects may be culled out on an analysis of the 
scheme of the DSPE Act, 1946: 
42. In essence, the DSPE was established only to exercise 
unrestricted power of investigation in the Union Territory of Delhi. It 
can investigate offences in a State, other than Delhi, provided that the 
State Government consents thereto and the relevant notification, under 
Section 5, has been issued by the Central Government. 
43. Secondly, the name of the establishment, created by the DSPE 
Act, 1946, is Delhi Special Police Establishment and not CBI; whereas it 
is the impugned Resolution, which has created the CBI as a police force 
for investigation of offences preparatory to filing of charge-sheets.  If a 
statute gives a specific name to an organization, created by the statute, 
 24 
it is not permissible to confer a new name on the organization by any 
executive instructions. Subject to the validity of the DSPE Act, 1946, 
only Delhi Special Police Establishment can be termed as statutory 
body created by the DSPE Act, 1946, and not the CBI. 
44. Thirdly, if CBI were part of the DSPE, the Resolution, dated 
1.4.63, would have made a mention to the effect that Central 
Government is issuing the impugned Resolution in exercise of powers 
vested in it by the DSPE Act, 1946. However, a reading of the 
Resolution would make it evident that it does not reflect the source of 
executive power. Since it is found that the Resolution, which created 
the CBI, is not an act of delegated legislation, the Resolution cannot 
become a part of the DSPE Act, 1946.  
45. This Court, vide order, dated 20.01.2013, has directed the 
respondents to produce the records relating to creation of the CBI.  It is 
relevant to note that despite directions, the respondents did not file the 
original records; rather they produced a certified copy of the records 
received from the National Archives.   
46. However, even perusal of the entire records makes it clear that 
the Resolution was neither produced before the President of India nor 
did it ever receive the assent of the President of India. Hence, strictly 
speaking, the Resolution, in question, cannot even be termed as the 
decision of the Government of India. That apart, it is apparent from the 
records that the CBI is a newly constituted body and not the same as 
 25 
DSPE.  The very subject of the file reads as Setting up of Central 
Bureau of Investigation and creation of various posts.  We would like 
to point out certain notings, at page 11, 20, 21, 23, 25, 26, 103, 104 and 
105, which read as follows: 
“The setting up of a Central Bureau of Investigation seems to be
necessary for the following reasons:

1. Inter-State Crime Investigation has become most important. In 
India there is, at present, no Inter-State Agency.” 

47. At Page 20, there is a letter dated 20.8.1962, of the Director 
General of Special Police Establishment, which reads as follows:
“I forward herewith, for what it may be worth, a note giving 
certain suggestions of implementing the decision of the Home
Minister to constitute and set up a Central Bureau of
Investigation” 

At page 21: 
 I think there was some discussion previously whether the
setting up of this Bureau of Investigation required the consent of the
States or not.  Now under the Defence of India Regulations, the Centre
can perhaps set up this bureau as an emergency measure.
 
At page 23:- 
In the `summary’ placed below, the previous history of the 
proposal for the re-organisation of the Central Intelligence Bureau into
the Central Bureau of Intelligence and Investigation has been briefly
brought out. This question was examined in 1949-51 and a suitable
provision enabling the Parliament to legislate for the establishment of a
Central Bureau of Intelligence and Investigation was made in the draft
Constitution.  Thereafter, it was proposed to undertake legislation for 
this purpose and State Governments were consulted on the scope and
functions of the Bureau. There was a large measure of agreement
among the State that offences pertaining to Central Acts, affecting the
interest of the Central Government and inter-state crime may be
handled by Central Bureau, and investigation of other crimes may also
be taken up by it at the request of the State Government concerned. 
The proposal was not pursued beyond this stage. 

At page 25 the following notings were made to give legal basis
to the CBI: 
 26 

State Government may be informed of this and also of our 
intention to sponsor legislation in due course to give legal basis
to the Bureau and to bring within its purview other crimes
originally envisaged. 

48. It is strange, as discernible from the notings at page 26, that  the 
Central Government did not want the States to know its intention of 
expanding the scope of the Bureau in due time, which is apparent from 
the following notings: 
 …..But it is for consideration whether, while communicating the
scheme to the State Governments, we should not also tell them
of our intentions of expanding its scope in due course to its
original conception and that  this would require suitable
legislation by Parliament which would be undertaken at the
appropriate stage. 
 Again at Page 98

Now that a decision has been taken to constitute and set up a Central
Bureau of Investigation it has to be considered how best to implement 
this and to give it a shape. The points that arise for consideration are:-
 
(i) Whether it is necessary to consult the States before setting up
the Central Bureau of Investigation?
 
(ii) Whether it is necessary to have a new comprehensive Act
to define the functions and the powers of the Central
Bureau of Investigation and to give it the legal authority
for conducting enquiries and investigations all over India?
 
(iii) What items of work should be allotted to the Central Bureau of
Investigation? 

2. If States are to be consulted and if a new comprehensive 
 
Act has to be passed by Parliament before the setting up of the
Central Bureau of Investigation, this proposal is likely to be
unduly held up. Objections might be raised or doubts might be
expressed by some States and the process of resolving them will
necessarily take time. Some difficulties might also arise from the
standpoint of the spheres of responsibility of the Centre and the
States. 
 27 
3. When these questions are examined in the light of existing
arrangements between the Centre and the States and of the legal
provisions that are already available, it does not appear to be
necessary to have consultation with the States and to
promulgate a new comprehensive  Act before  constituting the
Central Bureau of Investigation. 

4. There is already a provision in the Constitution for
setting up a Central Bureau of Investigation.  The States and
their Chief Ministers would have been consulted and all aspects
of the matter would have been examined and taken into
consideration by the framers of the Constitution before this
provision was incorporated. It would, therefore, be perfectly
legal and within the ambit of the Constitution to constitute and
set up a Central Bureau of Investigation. Moreover, it is
understood that even after the Constitution was passed the
States were consulted on this issue and there was general
agreement on the need for setting up a Central Bureau of
Investigation.

5. If the functions and the items to be allotted to the C.B.I. are only
those which are already being attended to by one Agency or another
under the Central government, there should be no need for fresh
consultation with the States. Such consultation might be necessary if 
new items of work are to be given to the C.B.I. but that need not be
done at present. 

At Page 103  

 It would appear from the above discussion that it is possible to give 
 
effect to the decision of the Home Minister and to set up a Central
Bureau of Investigation without having prior consultation with
the States and without going to Parliament for fresh legislation.
Even within the ambit of the existing legal provisions and of the
accepted arrangements with the States it is possible to allot the
essential and important items of work to the C.B.I. and to enable it to
function effectively and usefully.
 
9. Later, other functions could be added to the Central Bureau of
Investigations with the consent of the States and the scope of its
activities enlarged. At that stage the questions of framing a new
comprehensive Act could also be considered. Even otherwise it would
be better to frame a new Act after the C.B.I. has been in existence for
some time and when its difficulties and requirements as brought out by
actual experience are known. At that time it would also be far easier to
obtain the consent of the States for fresh legislation. 
 28 
 At Page 104:
 
10. In this connection a point worthy of note is that fresh legislation
on the lines contemplated is not free from difficulties. Very great care
will have to be taken to frame the proposed Act in such a way as
not to infringe on the provisions of the Constitution. Even with
all the care in drafting and preparing the Act it is likely to be
questioned in courts and it is difficult to anticipate what the
decision of the courts would be on the validity of the new Act or
on legal points arising from it. On the other hand, it might be
mentioned that the Delhi Special Police Establishment Act has
already gone through this process. Its provisions have been
debated in courts from all possible angles and it has withstood
onslaughts from all directions. Even the highest courts have
upheld the validity of the provisions of this Act. It is a matter
for consideration whether it would be worthwhile framing a
new Act just at present with all the delay and difficulty that
this involves and with the risk that it is likely to entail. 

 At Page 105:
 
12. From a consideration of the points mentioned in the foregoing
paragraphs it would appear that all that is necessary to implement this
proposal is to issue administrative orders – 
 
(i) constituting and setting  up a Central Bureau of
Investigation as provided for in the Constitution; 
 
(ii) declaring the S.P.E. to be a wing of the C.B.I. and an integral
part of it and under its administrative control; 

49. At page 126, various posts and pay scales are mentioned.

50. It is apparent from the notings, which we have referred to above, 
that the Central Government had set up altogether a new body known 
as CBI by the impugned Resolution. It is further found that the Union 
Home Ministry was working on the assumption that there is already 
provision in the Constitution for creation of the CBI. Admittedly, at 
that time, no legislation was made to set up the CBI and the source of 
 29 
power were being traced to Entry 8 of Part I (Union List), which reads, 
“Central Bureau of Intelligence and Investigation.”. 
51. Coming, now, to the argument of learned ASG that the CBI may 
be found to be treated to have been created by way of an executive 
instruction, the source of power being traceable to Entry 8 of List I 
(Union List), it may noted that Entry 8 of List I (Union List) reads, 
‘Central Bureau of Intelligence and Investigation’.  It is the submission of 
the appellant that the word, ‘investigation’, which appears in the 
expression,  ‘Central Bureau of Intelligence and Investigation’ under Entry 
8 of List I of the Union List, does not mean ‘investigation’, which is, 
ordinarily, carried out by a police force under the CrPC, preparatory to 
the filing of charge-sheet, against an offender. 
52. Support for the above submission is sought to be derived by the 
appellant referring to the debates of the Constituent Assembly, which 
took place on 29.08.1949, wherein the functions of the Central Bureau of 
Intelligence and Investigation had been discussed in the Constituent 
Assembly and explained by Dr. B. R. Ambedkar.  The meaning and 
importance of the word, ‘investigation’, which appears within the 
expression ‘Central Bureau of Intelligence and Investigation’, were 
explained by Dr. Ambedkar as under: 
Dr. B. R. Ambedkar: The idea is this that at the Union office
there should be a sort of bureau which will collect information with
regard to any kind of crime that is being committed by people
throughout the territory of India and also make an investigation as to
whether the information that has been supplied to them is correct or not
and thereby be able to inform the Provincial Governments as to what is
going on in the different parts of India so that they might themselves be 
 30 
in a ‘position to exercise their Police powers in a much better manner
than they might be able to do otherwise and in the absence of such
information.  

53. One of the members, Mr. Nazimuddin Ahmed could visualize a 
conflict of interest between the States, on the one hand, and the Union 
Government, on the other, and raised, in the Constituent Assembly, 
question about the implications and the use of the word, ‘investigation’, 
appearing within the expression ‘Central Bureau of Intelligence and 
Investigation’, in the following words: 
“Mr. Nazimuddin Ahmad: Mr. President, Sir I beg to move:  
“That in amendment No.1 for List I (Sixth Week) in the proposed entry 
2 of List I, the words ‘and investigation’ be deleted.”  
Then I move my next amendment which is an alternative to the first:  

“That in amendment No.1 of List I (Sixth Week) in the proposed entry
2 of List I for the word ‘investigation’ the words ‘Central Bureau of
Investigation’ be substituted.” 

The original entry was “Central Intelligence Bureau”. The redrafted
entry is “Central Bureau of Intelligence and Investigation. The words
“and Investigation” seem to me to appear to give an ambiguous effect. I
submit that the duty of the Union Government would be to maintain a
Central Intelligence Bureau. That is all right. Then we have the words
“and Investigation” and we do not know what these words really
imply. Do these words “and investigation” mean that the Bureau of
Investigation was merely to carry out the investigation? They will
mean entirely different things. If it is to enlarge the scope of the Central 
Intelligence Bureau as well as the Bureau of Investigation, that would
have been a different matter but Dr. Ambedkar in answer to a question
put by Mr. Mahavir Tyagi has said that the Central Government may
think it necessary to carry on investigation. Sir, I submit the effect of
this amendment, if that is the kind of interpretation to be given to it,
would be extremely difficult to accept. We know that investigation of
crime is a provincial subject and we have, already conceded that. If we
now allow the Central Government also to investigate, the result would
be that for a single crime there must be two parallel investigations, one
by the Union Government and other by the State Government. The 
 31 
result of this would be that there will be a clash and nobody will know
whose charge-sheet or final report will be acceptable. The Union
Government may submit a final report and the Provincial Government
may submit a charge-sheet, and there may be a lot of conflict between
these two concurrent authorities. If it is to carry on investigation, then
it will not be easy to accept it. It was this suspicion that induced me to
submit this amendment, though without any hope of being accepted, at
least to explain to the House my misgivings and these misgivings are
really substantiated by Dr. Ambedkar himself. I would, like to know
whether it is possible at once to accept this implication, to give the
Central Government power to investigate crimes. My first amendment
is intended to remove the words “and investigation”. If you keep the
investigation within this entry it should be the Central-Bureau of
Intelligence, as well as Bureau of Investigation. If there are two
Bureaus only there, could be no difficult and there will be no clash and
let us have as many Bureaus as you like but if you want investigation,
it will be inviting conflict. Rather it is another attempt to encroach on
the provincial sphere. I find there is no limit to the hunger of the
Central Government to take more and more powers to themselves and
the more they eat, the greater is the hunger for taking more powers. I
oppose the amendment of Dr. Ambedkar. I appeal to the House not to
act on the spur of the moment; it is easy for them to accept it as it is
easy for them to oppose it and the entry does not seem to be what it
looks.” 

54. Dr. Ambedkar, in response to the doubts, expressed by Mr. 
Nizamuddin, had clarified and assured the House, in no uncertain 
words, that the Central Government cannot and will not have the 
powers to carry out investigation into a crime, which only a police 
officer, under Cr.P.C., can do.  The response of Dr. Ambedkar is 
extracted below: 
 
The Honourable Dr. B. R. Ambedkar: The point of the matter is, 
the word “investigation” here does not permit and will not
permit the making of an investigation into a crime because that
matter under the Criminal Procedure Code is left exclusively to
a police officer. Police is exclusively a State subject; it has no
place in the Union List. The word “investigation” therefore is
intended to cover general enquiry for the purpose of finding out
what is going on. This investigation is not investigation
preparatory to the filing of a charge against an offender which
only a police officer under the Criminal Procedure Code can do.  
 32 
 
55. The learned ASG, on the other hand, argues, that if the language 
of an Act is unambiguous and clear, no reliance can be placed on the 
Parliamentary debates and one may look to the Statement & Objects 
and Reasons and not to the Parliamentary debates.  
56. In support of the above contention, the learned ASG has relied 
upon the decision, in Anandji  Haridas & Co. (P) Ltd. Vs. Engineering 
Mazdoor Sangh (1975) 3 SCC 862, wherein the relevant observations, 
appearing at para 9, reads, 
“9. We are afraid what the Finance Minister said in his speech cannot
be imported into this case and used for  the construction clause (e) of
section 7. The language of that provision is manifestly clear and
unequivocal. It has to be construed as it stands, according to its plain
grammatical sense without addition or deletion of any words. 
10. As a general principle of interpretation, where the words of a 
statute are plain, precise and unambiguous, the intention of the 
Legislature is to be gathered from the language of the statute itself and
no external evidence such as parliamentary debates, reports of the
Committees of the Legislature or even the statement made by the
Minister  on the introduction of a measure or by the framers of the Act
is admissible to construe those words. It is only where a statute is not
exhaustive or where its language is ambiguous, uncertain, clouded or
susceptible of more than one meaning or shades of meaning, that
external evidence as to the evils, if any, which the statute was intended
to remedy, or of the circumstances which led to the passing of the
statute may be looked into for the purpose of ascertaining the object
which the Legislature had in view in using the words in question.” 

57. It is necessary to point out here that the intent of embodying the 
Constituent Assembly debates is to gather an idea behind the general 
law making process. In any view of the matter, the debates quoted 
above, becomes relevant and unavoidable when it is contended, on 
behalf of the respondents, that the creation of the CBI can be traced to 
the Central Government’s power embodied in Entry 8 of List I of the 
 33 
Union List, which provides for creation of ‘Central Bureau of Intelligence 
and Investigation’.   
58. It is an admitted position that no independent law exists on 
Central Bureau of Intelligence and/or Investigation; rather, it is the 
DSPE Act, 1946, only which, as argued by the ASG, is the law, which, 
according to the respondents, has created the CBI. But then, Entry 8 
List I (Union List) definitely empowers the Parliament to enact a law in 
the form of ‘Central Bureau of Intelligence and Investigation’. Such a 
legislative competence is preserved under Art. 246 (1), which reads, 
“Notwithstanding anything in clauses (2) and (3), Parliament has exclusive 
power to make laws with respect to any of the matters enumerated in List I in 
the Seventh Schedule (in this Constitution referred to as the “Union List”).  
59. Having enacted a law, under Entry 8 of List I (Union List), if the 
Central Govt, decides to extend its operation in other States, then, it is 
necessary that the said law be amended in terms of Entry 8 of list I 
(Union List) so as to enable the Central Government to extend the 
operation of the law with the consent of the Government concerned.  
60. Coupled with the above, if the debates, in the Constituent 
Assembly, are borne in mind, the word, ‘investigation’, became a subject 
matter of debate, primarily, for the reason that it would amount to 
encroachment into the realm of the subject matter of State List. The 
word, ‘investigation’, appearing within the expression, ‘Central Bureau of 
Intelligence and Investigation’, was sought to be justified, in the 
Constituent Assembly, contending that Police is exclusively a State 
 34 
subject and it has no place in the Union List. The word ‘investigation’ 
was, therefore, according to the Constituent Assembly, intended to 
cover general ‘enquiry’ for the purpose of finding out what is going on 
and this ‘investigation’ is not an ‘investigation’ preparatory to the filing 
of a charge-sheet against an offender, which only a police officer, under 
the Criminal Procedure Code, can do.  
61. Learned ASG further argues that the expression Intelligence 
appearing in Entry 8 may be read in the Central Bureau of 
Investigation even though in general the expression in not used in its 
designation. 
62. It is necessary to point out here that the intent of embodying the 
Constituent Assembly debates is to gather an idea behind the 
Constitution making process relating to Entry 8 of List I (Union List) 
providing for creation of ‘Central Bureau of Intelligence and Investigation’ 
and the meaning of the term ‘investigation’, appearing within the 
expression ‘Central Bureau of Intelligence and Investigation’ as had been 
construed by the Constitution-makers.  
63. In the above view of the matter, the debates, quoted above, 
become relevant and unavoidable, when it is contended, on behalf of 
the respondents, that the creation of the CBI can be traced to the Union 
Government’s power embodied in Entry 8 of List I (Union List), which 
provides for creation of ‘Central Bureau of Intelligence and Investigation’.   
64. It is an admitted position that no independent law exists on 
Central Bureau of Intelligence and/or Investigation, though it is the 
 35 
alternative contention of the learned ASG that authority to constitute 
CBI may be traced to Entry 8 of List I (Union List).  
65. We may, however, point out that Entry 8 of List I (Union List), 
indeed, empowers Parliament to enact a law on the subject of ‘Central 
Bureau of Intelligence and Investigation’. Such a legislative competence is 
preserved under Art. 246 (1), which reads, “Notwithstanding anything in 
clauses (2) and (3), Parliament has exclusive power to make laws with respect 
to any of the matters enumerated in List I in the Seventh Schedule (in this 
Constitution referred to as the “Union List”.  
 
66. Coupled with the above, if the debates are borne in mind, it 
becomes abundantly clear that the word, ‘investigation’, appearing 
within the expression “Central Bureau of Intelligence and Investigation” 
became a heated subject matter of debates, in the Constituent 
Assembly, primarily, for the reason that empowering the Parliament to 
enact law, on ‘investigation’ conducted into an offence by police, would 
amount to encroachment into the realm of the subject matter of State 
List, though ‘police’ is a subject, which falls in the State List. 
67.  The inclusion of the word, ‘investigation’, appearing within the 
expression, ‘Central Bureau of Intelligence and Investigation’, was sought 
to be justified, in the Constituent Assembly, by contending that police 
remains exclusively a State subject and it has no place in the Union 
List. The word ‘investigation’ was, therefore, according to the 
Constituent Assembly debates, intended to cover general ‘enquiry’ for 
the purpose of finding out what was going on and this ‘investigation’, 
 36 
which amounts to a mere ‘enquiry’,  is not an ‘investigation’ preparatory 
to the filing of charge sheet against an offender, for, such an 
‘investigation’ can be carried on by only a police officer, under the 
Criminal Procedure Code, and none else. This apart, it is State 
legislature, which is entitled to constitute a ‘police force’ for the purpose 
of conducting ‘investigation’ into crime. 
68. From the above discussion, which took place in the Constituent 
Assembly, it becomes crystal clear that the Parliament cannot, by 
taking resort to Entry 8 of List I (Union List), make any law 
empowering a police officer to make ‘investigation’ in the same manner 
as is done, under the Criminal Procedure Code, by a police officer, 
while conducting an ‘investigation’ into an offence for the purpose of 
bringing to book an offender. 
69. In the above view of the matter, the impugned Resolution, dated 
01.04.1963, constituting the CBI, as an investigating agency, in order to 
carry out ‘investigation’ into commission of offences in the manner as is 
done by a police officer under the Criminal Procedure Code, cannot be 
traced to Entry 8 of List I (Union List).  
70. In other words, the source of power to create CBI as an 
investigating agency cannot be traced to, or be said to be located in, 
Entry 8 of List I (Union List). This apart, from the fact that while the 
law existing, prior to the coming into force of the Constitution of India, 
is protected in terms of the mechanism introduced by Article 372 and 
Article 372A of the Constitution of India, no amendment to any such 
 37 
law, if made after the Constitution of India has already come into force, 
be saved or protected by taking resort to Article 372 and 372A if the 
provisions, embodied in the Constitution, run counter to the scheme of 
our Constitution.   
71. It is also necessary, in the above context, to take note of the 
preamble of the DSPE Act, 1946, which reads as follows: 
 
“An Act to make provision for the constitution of a special police
force [in Delhi for the investigation of certain offences in [the
Union territories]], for the superintendence and administration
of the said force and for the extension to other [***] of the powers
and jurisdiction of members of the said force in regard to the
investigation of the said offences. 
WHEREAS it is necessary to constitute a special police 
force  [in Delhi for the investigation of certain offences in  [the
Union territories]] and to make provision for the
superintendence and administration of the said force and for the
extension to other areas  [***] of the powers and jurisdiction of
the members of the said force in regard to the investigation of the
said offences; 
Section 1 - Short title and extent 
 (1) This Act may be called the Delhi Special Police
Establishment Act, 1946. 
(2) It extends to [the whole of India], [***].” 
72. A careful reading of the preamble to the DSPE Act, 1946, would 
make it evident that the DSPE Act, 1946, has been made for the ‘Union 
Territories’. This legislative power cannot be exercised by the 
Parliament except under Art 246 (4), which enables Parliament to enact 
 38 
laws on subjects, covered by List II (State List), in respect of Union 
Territories.  
73. Thus, though police is a State subject, Parliament is competent to 
make laws, on the subject of police, for the Union Territories only 
inasmuch as Union Territories do not have any legislative assembly of 
their own. 
 
74. Again, a reading of Sec. 1 of the DSPE Act, 1946, would show 
that the DSPE Act, 1946, extends to whole of India meaning thereby 
that it is an embodiment of Entry 80 of List I (Union List), which 
enables Parliament to make law permitting extension of the operation 
of a police force to another State. It   is in this light that Sections 5 and 6 
of  the  DSPE Act, 1946,  need  to be  read together inasmuch as a 
combined reading of Sections 5 and 6 of the DSPE Act, 1946, makes it 
clear that the Central Government is empowered to extend the 
activities of the DSPE to any other State with, of course, the consent of 
the State concerned.  
 
75. Apprehending that his argument that CBI can be said to have 
been constituted, in exercise of power under Entry 8 of List I (Union 
List), may not, in the light of the Constituent Assembly debates, cut 
much ice with this Court, the learned ASG has submitted, perhaps, as a 
precautionary measure, that if constitution of the CBI cannot be traced 
to the Parliament’s power under Entry 8 of List I (Union List), CBI may 
be validly safeguarded by virtue of Entry 80 of List I (Union List) 
 39 
inasmuch as CBI can be said to have been constituted in exercise of 
power under Entry 80 of List I (Union List).   
76. Let us, now, examine, in the light of the provisions embodied in 
Entry 80 of List I (Union List), the correctness of the above 
submissions. Entry 80 of List I (Union List), we notice, reads as follows: 
 

“Extension of the powers and jurisdiction of members of a police force 
belonging to any State to any area outside that State, but not so as to
enable the  police of one State to exercise powers and jurisdiction in any
area outside that State without the consent of the Government of the
State in which such area is situated; extension of the powers and
jurisdiction of members of a police force belonging to any State to
railway areas outside that State.”  
77. It will be seen that Entry 80 of List I (Union List) merely enables 
the Parliament to extend the operation of police force of one State to 
another. However, Entry 80 of List I does not empower the Parliament, 
far less the Central Government, to enact a law creating a separate 
police force for the purpose of ‘investigation’ into a crime preparatory to 
the filing of charge sheets. What Entry 80 of List I permits is only 
making of provisions of ‘extension’ of a valid law governing activities of 
police of one State to have jurisdiction in any other State with, of 
course, the consent of the other State concerned.  
 
78. Thus, if the DSPE Act, 1946, were treated to be a valid piece of 
legislation, then, by virtue of Entry 80 of List I (Union List), the 
Parliament could have incorporated, in the DSPE Act, 1946, that the 
 40 
operation of DSPE Act, 1946, may be extended to other States if the 
latter State gives consents thereto.   
 
79. In the backdrop of what have been discussed above, Section 5, 
subject to Section 6 of the DSPE Act, 1946, can be regarded as an 
embodiment of Entry 80 List I (Union List). Such a provision could be 
made in the DSPE Act, 1946, because such a power was available with 
the Governor General-in-Council under Entry 39 of List I of Seventh 
Schedule to the Government of India Act, 1935, which corresponds to 
Entry 80 of List I (Union List).
  
80. Therefore, as regards the reliance placed on Entry 80 of List I 
(Union List) by the learned ASG, we hold that there must, at first, be a 
validly constituted police force and only thereafter, the question of 
‘extension’ of its jurisdiction to other areas by taking resort to Entry 80 
of the List I (Union List) will arise.  
 
81. We must remember that various Entries, in the Lists of Seventh  
Schedule, do not give any power to legislate; rather, the Entries 
demarcate the fields of legislation between the States and the Centre.  
In this regard, following observations, appearing in State of West 
Bengal  & Ors. Vs. Committee for Protection of Democratic Rights, 
West Bengal & Ors. (2010) 3 SCC 571, being relevant, are extracted: 
“27.Though, undoubtedly, the Constitution exhibits supremacy of
Parliament  over the State Legislatures, yet the principle of federal
supremacy laid down in Article 246 of the Constitution cannot be
resorted to unless there is an irreconcilable direct conflict between the 
 41 
entries in the Union and the State Lists. Thus, there is no quarrel with
the broad proposition that under the Constitution there is a clear
demarcation of legislative powers between the Union and the States
and they have to confine themselves within the field entrusted to them.
It may also be borne in mind that the function of the lists is not
to confer powers; they merely demarcate the legislative field...” 
 
(Emphasis supplied) 
82. Learned ASG, while placing reliance on the case of Advance 
Insurance Co. vs. Gurudasmal, reported in (1970) 1 SCC 633, argues 
that that it is because of  Entry 80 List I that the constitutional validity 
of the DSPE Act, 1946, had been upheld by Supreme Court. 
 
83. So far as the case of Advance Insurance Co. Ltd. (supra) is 
concerned, the argument, before the Supreme Court, was that Delhi 
Special Police Establishment Act, 1946, is not constitutionally valid and 
that DSPE has no jurisdiction to investigate cases in other States. The 
basis, for the argument, was that Entry 80 of List I speaks of police force 
of a State; whereas DSPE, 1946, was a police force of a Union Territory, 
namely, Union Territory of Delhi.  
 
84. The argument, so raised, in Advance Insurance Co. Ltd. (supra), 
by the appellant, was overruled by the Supreme Court in the context of 
Entry 39 of List I (Union List) under the Government of India Act, 
1935, corresponding to Entry 80 of List I (Union List) of the 
Constitution of India. Relying on the definition of ‘State’, as given in 
Section 3 (58) of the General Clauses Act, the Supreme Court held that 
‘State’ also meant a ‘Union Territory’ and so far as Entry 80 was 
 42 
concerned, since the substitution of term ‘Union Territory’, for the term 
‘State,’ is not repugnant to the context thereto, the term ‘State’ would 
also mean a Union Territory. The Supreme Court further observed, in 
Advance Insurance Co. Ltd. (supra), that since Entry 80 of List I 
(Union List) under the Government of India Act, 1935, corresponding 
to Entry 39 of List I of the Seventh Schedule, enables the police force of 
one State to function and carry out ‘investigation’ into an offence in 
another State if the latter State consents to such ‘investigation’, an 
‘investigation’ by the DSPE into a case, in Maharashtra, is permissible.  
To put it a little differently, the members of the DSPE, the DSPE being 
a valid establishment under the DSPE Act, 1946, may be empowered to 
‘investigate’ an offence in a State, outside Delhi, provided that the State 
concerned given consent to the same.  This is precisely what has been 
done by virtue of Sections 5 and 6 of the DSPE Act, 1946, and the same 
is in tune with Entry 39 of List I (Union List) under the Government of 
India Act, 1935, corresponding to Entry 80 of List I (Union List) of the 
Constitution of India. 
 
85. It is, thus, apparent that the case of Advance Insurance Co. Ltd 
(supra) is a precedent on the point that DSPE is a police force functioning 
in the Union Territory of Delhi. However, by no stretch of imagination, 
the case of Advance Insurance Co. Ltd. (supra) be regarded as a 
precedent on the point that CBI is a body constituted under the DSPE 
Act, 1946, nor is the case of Advance Insurance  Company Limited 
(supra) be regarded as a precedent to justify CBI as a validly constituted 
 43 
‘police force’ empowered to ‘investigate’ offences preparatory to filing of 
charge-sheets.  
86. The case of Advance Insurance Co. Ltd. (supra), thus, does not 
advance, or come to the assistance of, the respondents’ case that the 
CBI is borne out of the DSPE Act, 1946, or that the CBI can be regarded 
as a ‘police force’ constituted by the Central Government by taking 
resort to Entry 80 of List I (Union List). 
 
87. Consequently, it would not be a correct proposition of law to 
contend that Entry 80 of List I (Union List) validates the impugned 
Resolution, dated 01.04.1963, as an executive instruction of the Union 
Government, because Entry 80 of List I (Union List) presupposes 
existence of a valid ‘police force’ before the area of jurisdiction of such a 
‘police force’ is extended from one State to another State with the 
consent of the latter State. In the present case, the CBI, which is 
claimed to be a police force, has itself been brought into existence with 
the help of the impugned Resolution, dated 01.04.1963, and not on the 
strength of any legislation.  
 
88. In an attempt to bring home his argument that CBI is a 
statutorily established agency, learned ASG also took recourse to Entry 
1 and Entry 2 of List III (Concurrent List), which provide as follows: 
 
“1. Criminal law, including all matters included in the Indian Penal
Code at the commencement of this Constitution but excluding offences
against laws with respect to any of the matters specified in List I or List 
 44 

 

 
II and excluding the use of naval, military or air forces or any other
armed forces of the Union in aid of the civil power. 
 2. Criminal procedure, including all matters included in the Code of
Criminal Procedure at the commencement of this Constitution.” 
89. Article 246 (2), dealing with Concurrent List, provides that 
notwithstanding anything in clause (3), Parliament, and, subject to 
clause (1), the Legislature of any State also, have power to make laws 
with respect to any of the matters enumerated in List III in the Seventh 
Schedule.  
 
90. Thus, both, Union and State, can enact a criminal or penal law. 
However, such a penal law should not be on any of the subjects 
mentioned in List I or II and should not be laws on use of naval, 
military or air forces or any other armed forces of the Union in aid of 
the civil power. Again, as empowered by Entry 2, both, Union and 
State, can introduce changes in the Code of Criminal Procedure.  
91. Article 246, in essence, lays down the principle of federal 
supremacy and in the event of inevitable conflict between the exercise 
of power by the Union and a State, it is the power, exercised by the 
Union, which would prevail over the State’s powers and, in the case of 
overlapping of a legislation made by a State vis-à-vis a legislation made 
by the Parliament on a subject covered by List III (Concurrent List), it is 
not the former legislation, but the later one, which shall prevail. 
 45 
 92. Thus, both, the Union and the State, can frame law on IPC and 
Cr.PC provided that the laws do not overlap. In the event of laws 
overlapping, the law, made by the Parliament, shall prevail. 
93. For instance, let us take Section 354 IPC. Even before the 
enactment of Criminal Law (Amendment) Act, 2013, which introduced 
amendments in Indian Penal Code, CrPC, Evidence Act, etc., there 
were some States, which had already amended some of the features of 
Section 354 IPC. 
 
94. Thus, in the State of Andhra Pradesh, Sec. 354 IPC Andhra 
Pradesh Act 6 of 1991 read as follows: 
 
“354. Assault or criminal force to woman with intent to
outrage her modesty.-Whoever assaults or uses criminal force 
to any woman intending to outrage or knowing it to be likely
that he will thereby outrage her modesty, shall be punished with
imprisonment of either description for a term which shall not be
less than five years but which may extend to seven years and
shall also be liable to fine:  
Provided that the court may for adequate and special reasons to
be mentioned in the judgment, impose a sentence of
imprisonment of either description for a term which may be less
than five years but which shall not be less than two years.” 
95. The State of Orissa had also, by virtue of Orissa Act 6 of 1995, 
(w.e.f. 10-3-1995), introduced amendments in Section 354, which made 
the offence a non-bailable offence, though in the State of Assam, where 
 46 
no such amendments were made, the offence remained a bailable 
offence.  
96. So far as constitution of police force is concerned, Union and the 
State, both have legislative competence to enact laws on ‘police’. 
However, so far as law, enacted by Parliament, is concerned, it can 
operate only in the ‘Union territories’ and not in any ‘State’, because 
‘police’ is a subject falling under State List.  
97. For instance, for the State of Assam, the Assam Police Act, 2007, 
has been enacted by the State Legislature. It, however, needs to be 
mentioned here that Police Act, 2007, governs the administrative 
aspects of police. So far as ‘investigation’, a matter falling within the 
realm of Cr.PC, is concerned, only those police officers, who are 
recognized as Investigating Officers, under CrPC, have the power to 
investigate an offence. In other words, under the Assam Police Act, 
2007, there may be several police officers; but not all of them have the 
power to register a case, investigate an offence and/or submit a charge-
sheet. 
98. An example may be given by referring to Sec. 30 and Sec. 55 of 
Assam Police Act, 2007, which read as under:  
“Sec. 30 District Armed Reserve: The District Armed
Reserve, which will function under control, direction and
supervision of the District Superintendent of Police shall be the
armed wing of the District Police to deal with an emergent law
and order problem or any violent situation in the district, and 
 47 
for providing security guards or escort of violent prisoners, or
such other duties as may be prescribed”. 
Sec. 55 Investigation by special crime investigation unit:The
state government
shall ensure
that
in
all metropolitan

Police
 Stations
having
a population of 10 (ten)
lakhs or more, a
Special
Crime
Investigation
Unit,
headed
by an
officer
not
below

the
rank of
Inspector
of
Police, is
created
with
an appropriate

strength
of officers
and
staff, for investigating
organized,

economic,
and heinous
crimes.
The personnel
posted to this unit

shall
not
be diverted
to
any
others
duty,
except
under
very

special
circumstances
with the written
permission
of the

Director
General
of
Police. The State
Government
may,

however,
gradually
extend
this scheme
to other urban
Police

Stations.

99. It will be seen that Officers of the Armed Reserve, as conceived 
under Section 30, have not been entrusted with the responsibility of 
‘investigation’ even though they are Police Officers. On the other hand, 
Special Crime Investigative Unit has been conceived as an 
investigation organ in cities having population of more than 10 lakhs. 
100. The arguments of learned ASG, with reference to  Entry I and 2 
of List III, do not come to the rescue of the respondents for the simple 
reason that under List III, laws, on criminal procedure and penal laws, 
can be framed on any of the subjects, which are not covered by List I 
and List II. Since Entry 8 of List I (Union List) makes Parliament 
specifically competent to enact a law on ‘Central Bureau of Intelligence 
and Investigation’, it would be a destructive submission to say that if not 
 48 
under Entry 8 of List I, then, under Entry 1 and 2 of List III, CBI’s 
existence can be validated, particularly, when Entry 2 of List III 
(Concurrent List) deals with ‘procedure’ of ‘investigation’ and ‘trial’ of 
offences and not with the ‘constitution’ of a ‘police force’. 
 
101. The question, now, is: whether the impugned Resolution, dated 
01.04.1963, is an executive action and, therefore ‘law’ within the 
meaning of Article 13 (3)(a) and/or Article 21 of the Constitution of 
India?

 
102. Before entering into the discussion whether the impugned 
Resolution, dated 01.04.1963, is a valid executive action, It is necessary 
that the extent of executive powers of the Union and the State, as have 
been provided in Article 73 and Art. 162, respectively, be examined. 
Since both these provisions, embodied in the Constitution, define the 
limits of the law making capacity, discussion, on any one of the 
provisions, would suffice. 
 
103. The extent of executive powers of the Central Government has 
been prescribed by Article 73 of the Constitution, which is reproduced 
below: 
 
“73. Extent of executive power of the Union – (1) Subject to the
provisions of this Constitution, the executive power of the Union shall
extend –

(a) To the matters with respect to which Parliament has power to make 
laws; and
 
(b) To the exercise of such rights, authority and jurisdiction as are
exercisable by the Government  of India by virtue of any treaty or
agreement; 
 49 
 

Provided that the executive power referred to in sub-clause (a) shall
not, save as expressly provided in this Constitution or in any law
made by Parliament, extend in any State to matters with respect to
which the Legislature of the State has also power to make laws.
 
(2) Until otherwise provided by Parliament, a State and any officer
or authority of a State may, notwithstanding anything in this article,
continue to exercise in matters with respect to which Parliament has
power to make laws for that State such executive power or functions as
the State or officer or authority thereof could exercise immediately
before the commencement of this Constitution.” 
104. A bare reading of Article 73 makes it evident that the executive 
powers of the Union extends to all the matters with respect to which 
the Parliament has power to make laws; but, there are three fetters on 
exercise of the executive powers. First, this exercise is subject to 
provisions of the Constitution and, secondly, this exercise of executive 
power shall not, save as expressly provided in the Constitution or in 
any law made by Parliament, extend, in any State, to matters with 
respect to which the Legislature of the State also has power to make 
laws. Thirdly, as we would show, the exercise of executive power 
cannot be stretched to the extent of infringing fundamental rights.   
105. What is, now, of great importance to note is that Article 73 
cannot be read in isolation and it becomes necessary to understand its 
co-relation with Article 245 and Article 246 of the Constitution, which 
embody the concept of federal structure of our Constitution. Though 
within the powers vested in the Union and the States, each of these 
entities possesses plenary powers, their powers are, among others, 
limited by two important barriers, namely, (i) the distribution of powers 
by the Seventh Schedule and (ii) the Fundamental Rights included in Part III. 
 50 
 
106. A combined reading of Article 245 and Article 246 shows that 
Parliament and State Legislatures have Constitutional competence to 
make laws. However, the subject matter of the laws to be made have 
been delineated in the form of three lists, namely, Union List, State list 
and the Concurrent list. This apart, Parliament has the power to make 
laws, with respect to any matter, for any part of the territory of India, 
not included in a State, notwithstanding that such a matter is a matter 
enumerated in the State List. In other words, it is within the legislative 
competence of Parliament to make law, on subjects covered by State 
List, for those territories, which do not fall within any of the States.  
 
107. For instance, ‘police’ is a subject falling under Entry 2 of List II 
(State List). In view of Article 246 (3), therefore, only State has 
exclusive power to make laws on ‘police’ by taking recourse to Entry 2 
of List II (State List). However, Union Territories are not States within 
the meaning of Article 246 and, hence, Parliament can make laws, on 
police, for the Union Territories. 
108. The Delhi Police Act, 1978, can be cited as one such example. The 
Delhi Police Act, 1978, was enacted by the Parliament for the Union 
Territory of Delhi even though ‘police’ is a subject falling under State 
List. 
109. Explaining the concept of the extent of executive powers, the 
Supreme Court held, in Dr. D.C.Wadhwa & Ors. Vs. State of Bihar & 
Ors (AIR 1987 SC 579), that the executive cannot take away the 
 51 
functions of the legislature. The relevant observations, made in this 
regard, read as under: 
“….The law making function is entrusted by the Constitution to
the legislature consisting of the representatives of the people
and if the executive were permitted to continue the provisions of
an ordinance in force by adopting the methodology of repromulgation
without
submitting
it to
the
voice
of legislature,

it
would
be
nothing
short
of
usurpations
by
the
executive
of
the

law
making
function
of the legislature.
The
executive
cannot
by

taking
resort
to an
emergency
power
exercising
by
it only
when

the
legislature
is not
in session,
take
over
the law
making

function
of
the
legislature.
That
would
be
clearly
subverting
the

democratic
process
which
lies
at
the
core
of our
Constitutional

Scheme,
for
then
the
people
would
be
governed
not
by
the
laws

made
by
the
legislature
as
provided
in
the
Constitution,
but,
by

the
laws made
by
the
executive.
 The
government
cannot
bypass
the

legislature
and without
enacting
the provisions
of the
Ordinance
into

Act
of legislature,
re-promulgate
the
Ordinance
as soon
as
the

legislature
is prorogued…..



…..It
is settled
law that
a constitutional
authority
cannot
do
indirectly

what it is not permitted to do directly. If there is a constitutional
provision inhibiting the constitutional authority from doing an act,
such provision cannot be allowed to be defeated by adopting of any
subterfuge.  That would be clearly a fraud on the Constitution…..” 
             (Emphasis is supplied)

110. Thus, there remains no doubt that though the executive powers 
are co-extensive with legislative powers of the Union or of the States, 
as the case may be, this power is to be exercised within the limits 
prescribed by the Constitution or any law for the time being in force. 
That apart, once a legislation occupies a field, neither any of the States 
nor the Union can exercise its executive powers on the same field 
inasmuch as the legislation is the primary work of the Legislature and 
not of the Executive. 
 52 
111. So far as the operational effectiveness of executive action is 
concerned, the Supreme Court, in the case of Ram Jawaya Kapur vs 
State of Punjab (AIR 1955 SC 549), while dealing with an argument of 
violation of fundamental rights, observed that ordinarily, the executive 
power connotes the residue of governmental functions that remain 
after legislative and judicial functions are taken away.  
112. Elucidating further, the Supreme Court, in Ram Jawaya Kapur 
vs State of Punjab (AIR 1955 SC 549), observes that our Constitution 
does not contemplate assumption, by one organ or part of the State, of 
functions that essentially belong to another and that Executive can, 
indeed, exercise the powers of departmental or subordinate legislation, 
when such powers are delegated to it by the Legislature.  
113. The Supreme Court, however, without mincing any words, held, 
in Ram Jawaya Kapur (Supra), that specific legislation may, indeed, be 
necessary if the Government requires certain powers in addition to 
what they possess under ordinary law in order to carry on the 
particular trade or business. Thus, when it is necessary to encroach 
upon private rights in order to enable the Government to carry on 
their business, a specific legislation, sanctioning such a course, 
would have to be passed. 
114. The Supreme Court, in Ram Jawaya Kapur (supra), cautioned 
that if, by the notifications and acts of the executive Government, the 
 53 
fundamental rights, if any, of the petitioners have been violated, 
then, such executive actions have to be termed as unconstitutional.  
115. The case law, most appropriate to the above aspect of the 
Constitutional limitations, imposed on the exercise of the executive 
power, can be found in D. Bhuvan Mohan Patnaik vs State of AP 
(AIR 1974 SC 2092), wherein some prisoners had challenged the 
installation of live electric wire on the top of jail wall as being violative 
of personal liberty enshrined in Article 21 of the Constitution. The 
Supreme Court, having questioned the legal authority justifying such 
installation of live wires, rejected the argument that installing of the 
live high-voltage wire, on the walls of jail, was solely for the purpose of 
preventing the escape of prisoners and was, therefore, a reasonable 
restriction on the fundamental rights of the prisoners.  
116. Observed the Supreme Court, in D. Bhuvan Mohan Patnaik vs 
State of AP AIR 1974 SC 2092 (Supra), that if the petitioners succeed in 
establishing that the particular measure, taken by the jail authorities, 
violated any of the fundamental rights available to them under the 
Constitution, the justification of the measure must be sought in some 
‘law’ within the meaning of Article 13(3) (a) of the Constitution. The 
Supreme Court also observed, in D. Bhuvan Mohan Patnaik (Supra), 
that the installation of the live high-voltage wire lacks statutory 
basis and seemed to have been devised on the strength of 
departmental instructions, though such instructions were neither 
‘law’ within the meaning of Article 13(3) (a) nor do these instructions 
 54 
constitute "procedure established by law" within the meaning of 
Article 21 of the Constitution.  Therefore, if the petitioners are right in 
their contention that the mechanism, in question, constitutes an 
infringement of any of the fundamental rights available to them, they 
would be entitled to the relief sought for by them that the mechanism 
shall be dismantled.  
117. The State, in D. Bhuvan Mohan Patnaik (Supra), which had 
acted on executive instructions in installing live high-voltage wire on 
the walls of the jail, could not justify installation of this mechanism on 
the basis of a ‘law’ or ‘procedure established by law’ inasmuch as the 
executive instructions, which had been acted upon, were held by the 
Supreme Court to be not a ‘law’ within the meaning of Article 13(3)(a) 
nor could these instructions, according to the Supreme Court, fall 
within the expression, “procedure established by law’, as envisaged by 
Article 21. The relevant observations, appearing in this regard, in D 
Bhuban Patnaik (supra), read as follows; 
14. But before examining the petitioners' contention, it
is necessary to make a clarification. Learned counsel for
the respondents harped on the reasonableness of the step taken
by the jail authorities in installing the high-voltage live- wire 
on the jail walls. He contended that the mechanism was
installed solely for the purpose of preventing the escape of
prisoners and was therefore a reasonable restriction on the
fundamental rights of the prisoners. This, in our opinion, is a
wrong approach to the issue under consideration. If the 
petitioners succeed in establishing that the particular 
 55 
measure taken by the jail authorities violates any of
the fundamental rights available to them under the
Constitution, the justification of the measure must be
sought in some "law", within the meaning of Article
13(3) (a) of the Constitution. The installation of the
high voltage wires lacks a statutory basis and seems to
have been devised on the strength of departmental
instructions. Such instructions are neither "law" within
the meaning of Article 13(3) (a) nor are they "procedure
established by law" within the meaning of Article 21 of
the Constitution. Therefore, if the petitioners. are right
in their contention that the mechanism constitutes an
infringement of any of the funda- mental rights
available to them, they would be entitled to the relief
sought by them that the mechanism to be dismantled.
The State has not justified the installation of the mechanism 
on the basis of a law or procedure established by law"
    (Emphasis is supplied) 

118. Moreover, a Constitution Bench of the Supreme Court, in the 
case of State of M.P. v. Thakur Bharat Singh (1967 SCR 454), has held 
that the executive action cannot infringe rights of a citizen without 
lawful authority.  
119. Again, in the case of Bishambhar Dayal Chandra Mohan v. 
State of UP, reported (1982) 1 SCC 39, it has been held that though the 
executive powers of the State are co-extensive with the legislative 
powers of the State, no executive action can interfere with the rights of 
the citizens unless backed by an existing statutory provision.  
 56 
120. It will not be out of place to mention here that the executive 
powers of the State are to fill up the gaps and not to act as an 
independent law making agency inasmuch as the function of enacting 
law, under our Constitution, lies with the Legislature and the 
Executive has to implement the policies/laws made by the Legislature 
and if the State is permitted to take recourse to its executive powers to 
make laws, then, we would be governed by the laws not made by the 
Legislature, but by the Executive. As held by the Supreme Court, in the 
case of Chief Settlement Commissioner v. Om Prakash (AIR 1969 SC 
33), the notion of inherent and autonomous law making power, in the 
executive administration, is a notion that must be emphatically 
rejected. 
121. In one of the recent cases, namely, State of Jharkhand vs 
Jitendra Kumar Srivasatava, Civil Appeal 6770/2013 dated 14.8.13, the 
question confronting the Supreme Court, was whether, in the absence 
of any provision in the Pension Rules, the State Government can 
withhold a part of pension and/or gratuity during pendency of 
departmental/ criminal proceedings?
 
122. The Supreme Court, while answering the query, so posed, held 
that pension is a property within the meaning of Article 300A and 
since the executive instructions, withholding pension, are not having 
statutory character, it cannot be termed as ‘law’ within the meaning of 
Article 300A. The Supreme Court further held, in Jitendra Kumar 
Srivasatava (supra), that on the basis of a circular, which is not having 
 57 
force of law, not even a part of pension or gratuity can be withheld. 
The relevant observations made, in this regard, in Jitendra Kumar 
Srivasatava (supra), read as follows: 
 
15. It hardly needs to be emphasized that the executive instructions are
not having statutory character and, therefore, cannot be termed as
“law” within the meaning of aforesaid Article 300A. On the basis of
such a circular, which is not having force of law, the appellant cannot
withhold - even a part of pension or gratuity. As we noticed above, so
far as statutory rules are concerned, there is no provision for
withholding pension or gratuity in the given situation. Had there been
any such provision in these rules, the position would have been
different. 
123. The ‘ratio’, as can be gathered from the case of Jitendra Kumar 
Srivasatava (supra), is that if a legal right of a person is sought to be 
curtailed, it has to be done only by Statutory Rules and not by an 
executive instructions. 
124. It is, thus, seen that CBI has been investigating offences  and 
prosecuting alleged offenders in the garb of being an organization 
under the DSPE Act, 1946.  In fact, we have already indicated above 
that the impugned Resolution, dated 01.04.1963, is not, strictly 
speaking, an executive action of the Union within the meaning of 
Article 73 inasmuch as the executive instructions, embodied in the 
impugned Resolution, were not the decision of the Union Cabinet nor 
were these executive instructions assented to by the President. 
Therefore, the impugned Resolution, dated 01.04.1963, can, at best, be 
regarded as departmental instructions, which  cannot be termed as 
‘law’ within the meaning of Article 13(3) (a) nor can the executive 
instructions, embodied in the impugned Resolution, dated 
 58 
01.04.1963, be regarded to fall within the expression, "procedure 
established by law", as envisaged by Article 21 of the Constitution.  
125. Situated thus, the actions of the CBI, in registering a case, 
arresting a person as an offender, conducting search and seizure, 
prosecuting an accused, etc., offend Article 21 of the Constitution and 
are, therefore, liable to be struck down as unconstitutional.  
WHETHER THE DSPE ACT, 1946, IS ULTRA VIRES THE
CONSTITUTION ? 

126. This  Court had framed a query, i.e., “If a Pre-constitutional law 
was made on a subject, which is, now, covered by State List, whether the law 
will be valid after the Constitution has come into force bearing in mind Article 
372?” 
127. It is submitted, on behalf of the appellant, that the DSPE Act, 
1946, is ultra vires the Constitution of India.  There are three reasons for 
this submission, the first reason being that an existing law, or a law, 
which had been in force, immediately preceding the commencement of 
the Constitution of India, would be inoperative and invalid if it, 
otherwise, violates any of the fundamental rights, particularly, life and 
liberty of a person.   
128. Support, for the above submission, is sought to be derived by Dr. 
L. S. Choudhury, learned counsel for the appellant, by drawing 
attention of this Court to the expression, “subject to the other provisions of 
this Constitution’, which appears in Article 372.  The second reason, 
according to Dr. L. S. Choudhury, is that the Parliament does not have 
 59 
legislative competence to enact law on ‘police’ inasmuch as ‘police’ is a 
State subject, covered by Entry No.2 of List II (State list), and it is, 
therefore, the State Legislature alone, which is competent to enact law 
on ‘police’. Yet another ground, assailing the validity of the DSPE Act, 
1946, is that it extends, in terms of Section 1 of the DSPE Act, 1946, to 
the whole of India; whereas, no law, made on ‘police’, can extend to the 
whole of India. 
129. To buttress his argument, with respect to the phrase, “subject to 
other provisions of this Constitution”, reliance has been placed, on behalf 
of the appellant, on a Constitution Bench decision, in Union of India  v.  
The City Municipal Council, Bellary (AIR 1978 SC 1803), wherein the 
Constitution Bench of the Apex Court, while dealing with the 
expression, “subject to the other provisions of this Constitution”, has held 
as follows: 
“But the continuance in force of such an existing law is `subject
to the other provisions of this Constitution’. In other words if
the said law contravenes or is repugnant to any other provisions
of the Constitution then it has to give way to such provision of
the Constitution and its continuance in force after the
commencement of the Constitution  is affected to the extent it 
contravenes or is repugnant to the said provision. The Act of 1941 
creating the liability of the Railways to taxation by local authorities
was passed by the then Central Legislature which was a Federal
Legislature of India. The present Central Legislature namely, the
Parliament has not enacted any law after coming into force of the
Constitution making any provision affecting the exemption of the
property of the Union from all taxes imposed by a State or by any 
 60 
authority within a State. The 1941 Act is repugnant to clause (1) of
Article 285. It is neither a law made by Parliament nor a law made by
the Central Legislature after the advent of the Constitution. In either
view of the matter it is not a law covered by the phrase `save in so far as
Parliament may by law otherwise provide’ occurring in clause (1) of
Article 285. There is an additional reason for rejecting the argument of
Mr. Ramamurthi in this regard.  If the contention as made were to hold
good it will make clause (2) of Article 285 almost nugatory. We,
therefore, hold that the property  in question is exempt from all taxes
claimed by the  Bellary Municipal  Council under clause (1) of Article
285 unless the claim can be supported and sustained within the four
corners of clause (2).” 
             (Emphasis is supplied)

130. The learned ASG has submitted that the DSPE Act, 1946, has 
been validly enacted and adopted by the Government of India. The 
Adaptation of Laws Orders Part II has been placed on record, in this 
regard, by the Learned ASG.  The Learned ASG has  also submitted, in 
this regard, that the Constitutional validity of the DSPE Act, 1946, has 
already been upheld by the Supreme Court, in Management of 
Advance Insurance Co. Ltd. Vs. Gurudasmal, reported in (1970) 1 
SCC 633.   
131. The Learned ASG has further submitted that the pre-
constitutional laws are not to be regard as unconstitutional and the 
burden is not upon the State to establish its validity; rather, the burden 
is upon the person, who challenges the constitutional validity of a pre-
constitutional law to show that the pre-constitutional law is invalid. To 
support his contention, the learned ASG has placed reliance on the 
 61 
decision of the Supreme Court, in Deena v. Union of India, reported in 
(1983) 4 SCC 645, wherein the Court has observed, at para 11, as under:  
“ …Pre-Constitution laws are not to be regarded as unconstitutional.
We do not start with the presumption that, being a pre-constitution
law, the burden is upon the State to establish its validity. All existing
laws are continued till this court declares them to be in conflict with a
fundamental right and, therefore, void. The burden must be placed on
those who contend that a particular law has become void after the
coming into force the Constitution by reason of Article 13(1), read with
any of the guaranteed freedoms…

….a quotation extracted by Krishna Iyer, J. in B. Banerjee v. Anita Pan
– It may a repetition to say that according to the learned Chief Justice,
“there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks  it to show that
there has been a clear transgression of the constitutional  principles”
and that, “it must be presumed that the Legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made  manifest by experience and that its
discriminations are based on adequate grounds.” 

132. In Advance Insurance Co. Ltd (supra), the question, before the 
Supreme Court, was whether Delhi Special Police Establishment is 
constitutionally valid and whether Delhi Special Police Establishment 
has jurisdiction to investigate cases in other States. 
133. The Supreme Court had the occasion to deal with the history of 
the DSPE Act, 1946, and it observed as follows: 
 
“On July 12, 1943 the Governor General enacted an ordinance (XXII
of 1943) in exercise of his powers conferred by Section 72 of the 
Government of India Act which was continued in the Ninth Schedule
to the Government of India Act, 1935. An emergency had been
declared owing to World War II and the powers were exercisable by
the Governor General. The ordinance was called the Special Police
Establishment (War Department) Ordinance, 1943. It extended to
the whole of British India and came into force at once. By
Section 2(4) the Special Police Establishment (War Department) was
constituted to exercise throughout British India the power and 
 62 
jurisdiction exercisable in a province by the members of the police
force of that province possessing all their powers, duties, privileges
and liabilities. under Section 4 the superintendence of the Special
Police Establishment (War Department) was vested in the Central
Government. It was, however, provided by Section 3 as follows :
Offences to be investigated by Special Police Establishment :- 
The Central Government may by general or special
order specify the offences or classes of offences
committed in connection with Departments of the
Central Government which are to be investigated by the
Special Police Establishment (War Department), or
may direct any particular offence committed in
connection with a Department of the Central
Government. 
This ordinance would have lapsed on September 30, 1946. Before that
on September 25, 1946 another ordinance of the same name (No.
XXII of 1946) was promulgated. This constituted a special police
force for the Chief Commissioner's province of Delhi for investigation
of certain offences committed in connection with matters concerning
departments of the Central Government. The scheme of this 
ordinance was slightly different. under Section 2 Special Police
Establishment was constituted for the Chief Commissioner's
Province of Delhi for the investigation in that province of offences
notified in Section 3. This was notwithstanding the provisions of the
Police Act of 1861. The Police Establishment had throughout the
Chief Commissioner's Province of Delhi in relation to those offences
the powers, duties, privileges and liabilities of the regular police
officers subject, however, to any orders which the Central
Government might make in this behalf. Section 3 of the new
ordinance was almost the same as Section 3 of the previous
ordinance. The only changes were that the offences had to be notified
and the power to refer any particular case was not repeated. In the 
ordinance Section 5 provided that the consent of the Government of
the Governor's Province or of the Chief Commissioner should be
obtained to the extension before the powers would be exercised.

Ordinance No. XXII of 1946 was repealed by the Delhi Police
Establishment Act 1946 (XXV of 1946) which re-enacted the 
provisions of the Ordinance. This Act was adapted and amended on
more than one occasion. First came the Adaptation of Laws Order 
 63 
1950, enacted under Clause 2 of Article 372 of the Constitution on
January 26, 1950. It made two changes. The first was throughout the
Act for the words "Chief Commissioner's Province of Delhi" the
words "State of Delhi" were substituted and for the word
"Provinces" the words "Part A and C States" were substituted. This
was merely to give effect to the establishment of "States" in place of
provinces under the scheme of our Constitution.

Next came the changes introduced by Part B States (Laws) Act, 1951
(Act III of 1951). They were indicated in the schedule to that Act.
Those changes removed the words 'in the States' in the long title and
the preamble. The purpose of this was to remove reference to the
States in the phrases "for the extension to other areas in the States".
The more significant changes came in 1952 by the Delhi Special
Police Establishment (Amendment) Act 1952 (XXVI of 1952). In the
long title (after the "Adaptation of Laws Orders 1950) the words
were: 
An Act to make provision for the Constitution of a special
police force for the State of Delhi for the investigation of
certain offences committed in connection with matters 
concerning Departments of the Central Government etc.
After the amendment the words read : 
An Act to make provision for the Constitution of a special
police force in Delhi for the investigation of certain
offences in Part C States. 
Similar changes were also made in the preamble and in Section 3 the
reference to Departments of Government was also deleted. The
change from 'for the State of Delhi' to 'in Delhi' was the subject of
comment in the High Court. To that we shall refer later.

In 1956 the Constitution (Seventh Amendment) Act, 1956 was
enacted. Previously the Constitution specified the States as Parts A, 
B and C States and some territories were specified in Part D in the
First Schedule. By the amendment the distinction between Parts A
and B was abolished. All States (previously Part A and B States)
were shown in the First Schedule under the heading 'The States' and
Part C States and Part D territories were all described as Union
Territories. Thereupon an Adaptation of Laws Order, 1956 was 
passed and in the Delhi Special Police Establishment Act 1946 all
references to 'Part C States' were replaced by the expression 'union 
 64 
 
territory'. Another significant change made by the Amending Act
was to remove from Section 2 the words 'for the State of Delhi', and
all references to offences by the words 'committed in connection with
matters concerning Departments of the Central Government' were
deleted. 
After the passing of the 1946 Act a number of notifications succeeded
which notified the offences which the Special Police Establishment
could investigate”. 
134. Having traced out the history of the DSPE Act, 1946, the 
Supreme Court recorded, in Advance Insurance Co. Ltd (supra), the 
appellant’s argument that Delhi was not a State within the meaning of 
Entry 80 of List I (Union List) and, hence, Delhi being a Union 
Territory, its laws cannot be extended to any other State inasmuch as 
Entry 80 of List I of the Union List speaks of a police force of a State and 
not of Union Territory.  Referring to Section 3 (58) of the General 
Clauses Act, the Supreme Court pointed out, in Advance Insurance 
Co. Ltd (supra), that after independence, the General Clauses Act had 
been adopted by giving a new definition of the State and, hence, the 
word, ‘State’, appearing in Entry 80 of List I (Union List), would 
include a Union Territory as well. 
135. Concluded, therefore, the Supreme Court, in Advance Insurance 
Co. Ltd (supra), that the scheme of the Constitution is that the Union 
Territories are centrally administered and if the words 'belonging to', 
appearing in Entry 80, mean belonging to a part of India, the 
expression is equal to a police force constituted to function in an area. In 
this way, Delhi Police Establishment means a police force constituted 
and functioning in the Union Territory of Delhi and, previously, the 
 65 
same force functioned, in the Chief Commissioner's Province of Delhi, 
then, in Part C State of Delhi and, now, it functions in the Union 
territory of Delhi.  The relevant observations, made in this regard, in 
Advance Insurance Co. Ltd (supra), read as under: 
29. Now the scheme of the Constitution is that the Union territories
are centrally administered and if the words 'belonging to' mean
belonging to a part of India, the expression is equal to a police force
constituted to function in an area. In this way the Delhi Police
Establishment means a police force constituted and
functioning in the Union territory of Delhi. Previously the
same force functioned in the Chief Commissioner's Province of
Delhi, then in Part C State of Delhi and now it functions in the
Union territory of Delhi. 
(Emphasis is supplied) 
136. It will, thus, be seen that there is a clear finding, in Advance 
Insurance Co. Ltd (supra), that DSPE means a police force, constituted 
and functioning in the Union Territory and, hence, it would not be 
appropriate, now, for us to enter into the question of vires of the 
DSPE Act, 1946, particularly, when we have already held that CBI is 
not an organ or part of the DSPE, under the DSPE Act, 1946, and we 
are, therefore, not required to determine the constitutional validity of 
the DSPE Act, 1946.   
137. In other words, irrespective of the fact as to whether the DSPE 
Act, 1946, is valid or not, the clear conclusion of this Court is that the 
CBI is not an organ or part of the DSPE and that the CBI has not 
been constituted under the DSPE Act, 1946.  In the face of these 
 66 
conclusions, it would be merely an academic exercise if we try to 
determine whether the DSPE Act, 1946, is or is not a valid piece of 
legislation.  
138.  Consequent to the discussion, held above, it is crystal clear 
that the fundamental question, raised in the appeal, is: Whether the 
CBI is an organ of the DSPE under the DSPE Act, 1946 ?  Merely 
because arguments and counter-arguments have been advanced 
before us, on the validity of the DSPE Act, 1946, the arguments and 
the counter-arguments do not warrant a decision on this issue 
inasmuch as no decision, on this issue, is warranted when we have 
already held that the CBI is not a part or organ of the DSPE, under 
the DSPE Act, 1946.   
139. We, however, consider it necessary to look into those 
decisions, which have been relied upon by the learned ASG, to 
contend that CBI is an organ or part of the DSPE, under the DSPE 
Act, 1946.   
140. With regard to the above, the learned ASG has relied upon the 
decision, in Kazi Lhendup Dorji vs. Central Bureau of investigation 
& Ors. 1994 Supp (2) SCC 116.  The relevant observations read as 
under: 
“2. The Act was enacted to make provision for the constitution of a
special police force in Delhi for the investigation of certain offences in
the Union Territories, for the superintendence and administration of
the said force and for the extension to  other areas of the powers and 
 67 
jurisdiction of members of the said force in regard to the investigation
of the said offences. DSPE constituted under the said Act is now
known as the Central Bureau of Investigation (CBI)….” 
             (Emphasis is supplied) 
 141. The learned ASG has also referred to a Constitution Bench 
decision, in State of West Bengal &Ors. Vs. Committee for Protection 
of Democratic Rights, West Bengal & Ors. reported in (2010) 3 SCC 
571, wherein the observations of the Constitution Bench, which the 
learned ASG has relied upon, read thus: 
“The issue which has been referred for the opinion of the
Constitution Bench is whether the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution of India, can direct
the Central Bureau of Investigation (for short “CBI”), established
under the Delhi Special Police Establishment Act,1946 (for short “The 
Delhi Special Police Act”) to investigate a cognizable offence, which is
alleged to have taken place within the territorial jurisdiction of a State,
without the consent of the State Government” 
   (Emphasis is supplied)
142. The learned ASG, relying upon the above observations, has 
submitted that the Supreme Court has held that the CBI is constituted 
and functioning under Delhi Special Police Establishment Act, 1946. 
143. The learned ASG has also referred to the case of M. C. Mehta 
(Taj Corridor Scam) vs.  Union of India and ors, reported in (2007) 1 
SCC 110, wherein S.B. Sinha, J, concurring with the directions, which 
were decided to be issued to the CBI, as regards its investigation, 
observed as under: 
 68 
“S.B. Sinha, J. (concurring) – This Court entrusted
investigation to the Central Bureau of Investigation (CBI)
which was constituted under the Delhi Special Police
Establishment Act, 1946 (for short, “the Act).  It was enacted to
make provision for the constitution of a special police force in
Delhi for investigation of certain offences in the Union
Territories, for the superintendence and administration of the
said force and for extension to the other areas of the powers and
jurisdiction of members of the said force in regard to the
investigation of the said offences.” 
144. Referring to the decisions, in Kazi Lhendup Dorji (supra), 
Committee for Protection of Democratic Rights, West Bengal & Ors. 
(supra), and M. C. Mehta (Taj Corridor scam) (supra), the learned 
ASG has submitted that in terms of the decisions, in the said three 
cases, the CBI has been established, under the DSPE Act, 1946, and, 
hence, the ‘ratio’, which has been laid down in the said three cases, may 
not be disturbed.  
145. Reacting to the above submissions, which have been made by 
the learned ASG, it has been contended, on behalf of the appellant, that 
the decision, in Kazi Lhendup Dorji (supra), Committee for 
Protection of Democratic Rights, West Bengal & Ors (supra), and M. 
C. Mehta (Taj Corridor Scam) (supra), which have been referred to, 
and relied upon, by the learned ASG, are not applicable to the issues, 
which have been raised in the writ petition and the present appeal 
inasmuch as the principal issue, in the writ petition and the writ 
appeal, is as to whether the CBI is a constitutionally valid police force 
 69 
and, in none of the decisions, which have been referred to, and relied 
upon, by the learned ASG, the issue, in question, fell for determination.  
146.  It has also been submitted, on behalf of the appellant, that the 
Hon’ble Supreme Court’s observations, appearing in Kazi Lhendup 
Dorji (supra), Committee for Protection of Democratic Rights, West 
Bengal & Ors (supra), and M. C. Mehta (Taj Corridor Scam) (supra), 
to the effect that DSPE is, now, called the CBI, or that the CBI has been 
constituted under the DSPE Act, 1946,  are as a measure of narration of 
facts and not the ratio of the case inasmuch as it has always been the 
claim of the Union of India that CBI has been constituted under the 
DSPE Act, 1946, and the correctness of this contention was never 
questioned or fell for determination, or discussed and/or answered, by 
the Supreme Court.   
147. When the issue, in question, was never raised in any of the cases, 
which have been relied upon by the learned ASG, the observations, 
which have appeared, in Kazi Lhendup Dorji (supra), Committee for 
Protection of Democratic Rights, West Bengal & Ors (supra), and M. 
C. Mehta (Taj Corridor scam) (supra), to the effect that CBI is 
constituted under the DSPE Act, 1946, cannot be regarded as ratio 
decidendi   or even obiter dictum.     
148. We have already recorded above that, in the present appeal, we 
raised a pointed query, namely, whether the constitutional validity of 
the CBI was ever challenged, discussed and/or answered in any of the 
reported decisions of the Supreme Court ?  To the query, so raised, 
 70 
learned counsel for the parties concerned and the learned amicus curiae 
have agreed that this issue was not raised, discussed and answered in 
any of the reported decisions of the Supreme Court. 
149. Bearing in mind what we have pointed out above, let us, now, 
turn to the issues, which fell for determination, in Kazi Lhendup Dorji 
(supra), Committee for Protection of Democratic Rights, West Bengal 
& Ors (supra), and M. C. Mehta (Taj Corridor Scam) (supra). 
150. In the case of Kazi Lhendup Dorji (supra), the issue was entirely 
different inasmuch as the Supreme Court, in Kazi Lhendup Dorji 
(supra), observed as under: 
“This Writ Petition filed under Article 32 of the Constitution
raises the question whether it is permissible to withdraw the 
consent given by the State Government  under Section 6 of the
Delhi Special Police Establishment Act, 1946 (hereinafter
referred to as the `Act’) whereby a member of the Delhi Special
Police Establishment (DSPE) was enabled to exercise powers
and jurisdiction for the investigation of the specified offences in
any area in the State and, if so, what is the effect of such
withdrawal of consent on matters pending investigation on the
basis of such consent on the date of withdrawal”. 
   (Emphasis is supplied) 
151. Thus, the real issue, in Kazi Lhendup Dorji (supra), was 
whether the ‘consent’, once given by a State, can be recalled by the State 
as regards extension of investigation by the CBI and, if so, what will be 
the effect on the pending investigations? 
 71 
152. It is transparent that the issue, as regards the constitutional 
validity of the CBI, had not fallen for determination in Kazi Lhendup 
Dorji (supra).  Hence, the decision, in Kazi Lhendup Dorji (supra), 
cannot be held to be applicable to the present case. 
153.  Similarly, in the case of Committee for Protection of 
Democratic Rights, West Bengal & Ors (supra), the issue, which really 
fell for determination, was, in the words of the Constitution Bench, as 
follows: 
“The issue which has been referred for the opinion of the
Constitution Bench is whether the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution of India, can
direct the Central Bureau of Investigation (for short “CBI”),
established under the Delhi Special Police Establishment 
Act,1946 (for short “The Delhi Special Police Act”) to
investigate a cognizable offence, which is alleged to have taken
place within the territorial jurisdiction of a State, without the
consent of the State Government.”            
      (Emphasis is supplied)
154. Thus, the only issue, which arose for determination, in 
Committee for Protection of Democratic Rights, West Bengal & Ors 
(supra), was whether the High Court, under Article 226 of the 
Constitution of India, can direct the CBI  to investigate even when the 
State concerned does not given its consent thereto ?  The issue, so 
raised, in Committee for Protection of Democratic Rights, West 
Bengal & Ors (supra), is not the same as the one, which we have at 
 72 
hand, namely, whether the CBI is a constitutionally valid ‘police force’  
or not? 
155. Turning to the case of M. C. Mehta (Taj Corridor Scam) (supra), 
we notice that the relevant observations, which the learned ASG relies 
upon, read as under: 
“2. A purported vertical difference of opinion in the administrative
hierarchy in CBI between the team of investigating officers and the law
officers on one hand and the Director of Prosecution on the other hand on
the question as to whether there exists adequate evidence for judicial
scrutiny in the case of criminal misconduct concerning the Taj Heritage
Corridor Project involving 12 accused including a former Chief Minister
has resulted in the legal stalemate which warrants interpretation of Section
173(2) CrPC. 
***   ***   *** 
***   ***   ***
Background facts 
19. The key issue which arises for determination in this case is:
whether on the facts and the circumstance of this case, the Director,
CBI, who has not given his own independent opinion, was right in
referring the matter for opinion to the Attorney General for India,
particularly when the entire investigation and law officers’ team
was ad idem in its opinion on filing of the charge-sheet and only on
the dissenting opinion of the Director of Prosecution, whose 
opinion is also based on the interpretation of the legal evidence,
which stage has not even arrived. The opinion of the Director, CBI is
based solely on the opinion of the Attorney General after the reference. 
***   ***   ***
***   ***   *** 
 73 
S.B. SINHA, J. (concurring)— This Court entrusted investigation to
the Central Bureau of Investigation (CBI) which was constituted under the
Delhi Special Police Establishment Act, 1946 (for short “the Act”). It was
enacted to make provision for the constitution of a special police force in
Delhi for investigation of certain offences in the Union Territories, for the
superintendence and administration of the said force and for extension to
other areas of the powers and jurisdiction of members of the said force in
regard to the investigation of the said offences. 
38. Section 2 empowers the Central Government to constitute a special
force. Indisputably, the first respondent has been constituted in terms
thereof. Sub-section (2) of Section 2 provides that subject to any orders
which the Central Government may make in this behalf, members of the
said police establishment shall have throughout any Union Territory, in
relation to the investigation of such offences and arrest of persons
concerned in such offences, all the powers, duties, privileges and liabilities
which police officers of that Union Territory have in connection with the 
investigation of offences committed therein. The said Act indisputably
applies in regard to charges of corruption made against the public
servants.” 
 
156. From a bare reading of what have been observed above, it 
becomes clear that the issue, which we have at hand, namely, whether 
the CBI is a constitutionally valid police force or not, was not a question 
for determination in the case of M. C. Mehta (Taj Corridor Scam) 
(supra).  In fact, it was never contended, in M. C. Mehta (Taj Corridor 
Scam) (supra), that CBI is not a constitutionally valid police force. 
157. When the question, which we confront, in the present appeal, 
was not the question raised in any of the cases, which the learned ASG 
has cited, it is clear that the ratio decidendi  of none of the cases, relied 
 74 
upon by the respondents, can be of any assistance to the respondents’ 
contention that the CBI is a constitutionally valid police force.  Factually 
speaking, it is the general impression that DSPE is, now, called CBI, or 
CBI is established under the DSPE Act, 1946.  It has never been 
questioned if CBI is, legalistically speaking, another name for the DSPE 
or if CBI has been validly constituted under the DSPE Act, 1946 ?  
When such is the situation, what shall be the duty of this Court? 
158. On the above aspect of the law, we may refer to the case of 
Oriental Insurance Company Limited vs. Smt. Raj Kumari & ors. 
(AIR 2008 SC 403), wherein the Supreme Court has pointed out that 
the reason or principle, on which a question before a Court has been 
decided, is alone binding as a precedent. A case is precedent and binding 
for what it explicitly decides and no more and that the words of the 
judges, in their judgements, are not to be read as if they are words in 
an Act.  The relevant observations, appearing in Smt. Raj Kumari 
(supra), in this regard, read as under: 
 “11.  Reliance on the decision without looking into the factual
background of the case before it is clearly impermissible. A decision is a
precedent on its own facts. Each case presents its own features. It is not
everything said by a Judge while giving a judgment that constitutes a 
precedent. The only thing in a Judges decision binding a party is the
principle upon which the case is decided and for this reason it is
important to analyze a decision and isolate from it the ratio decidendi.
According to the well-settled theory of precedents, every
decision contains three basic postulates (i) findings of material
factors, direct and inferential. An inferential finding of facts is 
 75 
the inference which the judge draws from the direct, or
perceptible facts; (ii) statements of the principles of law
applicable to the legal problems disclosed by the facts; and (iii)
judgment based  on the combined effect of the above. A decision
is an authority for what it actually decides. What is the essence
in a decision is its ratio and not every observation found therein
nor what logically flows from the various observations made in
the judgment. The enunciation of the reason or principle on
which a question before a Court has been decided is alone
binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar
Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. Vs.
Bhanwanti Devi and Ors. (1996 (6) SCC 44.: 1996 AIR SCW 4020). A
case is  a precedent and binding  for what it explicitly decides
and no more. The words used by Judges in their judgments are
not to be read as if they are words in Act of Parliament. In
Quinn v. Leathern (1901) AC 495 (H.L.) Earl of Halsbury LC observed 
that every judgment must be read as applicable to the particular facts
proved or assumed to be proved, since the generality of the expressions
which are found there are not intended to be exposition of the whole law
but governed and qualified by the particular facts of the case in which
such expressions are found and a case is only an authority for what it
actually decides. 
              (Emphasis is supplied) 
 
159. Striking a word of caution for Courts, the Supreme Court held, 
in Smt. Raj Kumari & Ors. (supra), that Courts should not place 
reliance on decisions without discussing as to how the factual situation 
fits in with the fact situation of the decision on which reliance is placed. 
Observations of Courts are neither to be read as Euclid’s Theorems nor 
as provisions of the statute and that too, taken out of their context. The 
 76 
observations must be read in the context in which they appear to have 
been made. The relevant observations, made in Oriental Insurance 
Company Limited (supra), are reproduced hereunder:
 
“12.     Courts should not place reliance on decisions
without discussing as to how the factual situation fits in with
the fact situation of the decision on which reliance is placed.
Observations of Courts are neither to be read as Euclid’s
Theorems nor as provisions of the statute and that too taken out
of their context. These observations must be read in the context
in which they appear to have been stated. Judgments of Courts are
not to be construed as statutes.         
(Emphasis is supplied) 

160. Again, in Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant 
Ram Niwas & Anr. (AIR 2008 SC 2187), the Supreme Court, while 
dealing with the doctrine of precedent, has held as under: 
 
“19. The judgment of a Court, it is trite, should not be
interpreted as a statute. The meaning of the words used in a
judgment must be found out on the backdrop of the fact of each
case. The Court while passing a judgment cannot take away the
right of the successful party indirectly which it cannot do
directly. An observation made by a superior court is not binding.
What would be binding is the ratio of the decision. Such a
decision must be arrived at upon entering into the merit of the 
issues involved in the case.”
                      (Emphasis is supplied) 
161. The above observations, made in Dadu Dayalu Mahasabha, 
Jaipur (Trust) (supra), clearly show that a judgement of a Court shall 
not be interpreted as a statute and that the meaning of the words, used 
 77 
in the judgement, must be found on the backdrop of the facts of each 
case and that an observation, made by a superior Court, is not binding 
inasmuch as what would be binding is the ratio of the decision and 
such a decision has to be reached upon entering into merit of the issues 
involved in the case. 
162. We may, at this stage, deal with the concept of ‘obiter dictum.’  
163. In Salmond on Jurisprudence (Twelfth Edition), rules, 
determining ratio decidendi, have been indicated. It can, broadly 
speaking, be said that what is not a ratio decidendi is an obiter dictum and 
it is the ratio decidendi, which is binding on the Courts.  
 
164. In Chapter X of Keeton's Elementary Principles of Jurisprudence 
(Second Edition), "obiter dictum" is described as "statements of law made 
by a judge in the course of a decision, arising out of the circumstances of the 
case, but not necessary for the decision.”…  
 
165. In Mohandas Issardas v. A. N. Sattanathan (AIR 1955 Bom 113), 
the point, under consideration, was whether an obiter dictum of the 
Supreme Court was as much binding upon the High Courts as an 
express decision given by the Supreme Court. However, the allied 
question, as to what is an obiter dictum, which has a binding effect upon 
a Court, was also commented upon. Obiter dictum was regarded as an 
expression of opinion on a point, which was not necessary to the 
decision of the case. The observations are as follows: 
 
 78 
 
“….6. But the question still remains as to what is an 'obiter dictum'
given expression to by the Supreme Court which is binding upon the
Courts in India. Now, an 'obiter dictum' is an expression of opinion on
a point which is not necessary for the decision of a case. This very
definition draws a clear distinction between a point which is necessary
for the determination of a case and a point which is not necessary for
the determination of the case. But in both cases points must arise for
the determination of the tribunal. Two questions may arise before a
Court for its determination. The Court may determine both although
only one of them may be necessary for the ultimate decision of the case.
The question which was necessary for the determination of the case
would be the 'ratio decidendi'; the opinion of the tribunal on the
question which was not necessary to decide the case would be only an
'obiter dictum'.  
166. Reference was, then, made, in Mohandas Issardas (supra), to the 
definition of 'obiter dictum' as found in Stroud's Judicial Dictionary, 
which is based upon the case of Flower v. Ebbw Vale Steel Iron and 
Coal Co., 1934-2 KB 132, and the following passage, at page 154, from 
the judgment of Talbot, J, in Dew v. United British Steamship Co. 
Ltd., 1928-139 LT 628, was quoted, which read as follows: 
 
 
"..................It is of course perfectly familiar doctrine that obiter dictum
though they may have great weight as such are not conclusive
authority. Obiter dictum in this context means what the words literally 
signify namely, statements by the way. If a judge thinks it desirable to
give his opinion on some point which is not necessary for the decision
of the case that of course has not the binding weight of the decision of
the case and the reasons for the decision." 
 79 
167. Thereafter, the statement of the law, in Halsbury, Volume XIX, at 
page 251, was quoted, in Mohandas Issardas (supra), which read as 
follows: 
 
“It may be laid down as general rule that that part alone of a
decision of a Court of law is binding upon courts of co-ordinate
jurisdiction and inferior Courts which consists of the enunciation of the
reason or principle upon which the question before the Court has really
been determined. This underlying principle which forms the only
authoritative element of a precedent is often termed the ‘ratio
decidendi’. Statements which are not necessary to the decision, which
go beyond the occasion and lay down a rule that is unnecessary for the
purpose at hand (usually termed dicta) have no binding authority on
another Court, though they may have some merely persuasive efficacy.” 

168. Having considered the earlier Full Bench decision of Bombay 
High Court, in Shivaji Ganpati Vs. Murlidhar  (AIR 1954 Bom 386),  
which was based on the decision of the Privy Council, in Lal Bahadur 
vs. Ambika Prasad  (AIR 1923 PC 264 (J), in respect of `obiter dictum’, 
the Bombay High Court, in the case of Mohandas Issardas (supra), 
observed as under: 
 
“The reason why we refused to be bound by this opinion was that we
failed to see any observation which the Privy Council had made on the
rights of after-born sons with regard to alienations of joint family 
property. Although this observation was made by the Privy Council,
the point was not determined by the Privy Council, and it is clear from
that judgment that no arguments were advanced and the Privy Council
contented itself with deciding the question on the nature of the
alienation, namely, that legal necessity justified the alienation. 
 80 
169. The Bombay High Court, in Mohandas Issardas (supra), also 
considered the decision in Venkanna Narsinha v. Laxmi Sannappa   
(AIR 1951 Bom 57) and, while holding that `obiter dictum’  is not 
binding, has observed thus: 
“Therefore, implicit in the Judgment of Mr. Justice Bhagwati is the
position that it is only when a point arises for determination and
the point is determined that an opinion expressed on that point
becomes an 'obiter dictum' which is binding upon the Courts in
India.” 
               (Emphasis is supplied)
 
170. The Bombay High Court, in Mohandas Issardas (supra), having 
considered various judgments of the Privy Council, Supreme Court 
and other High Courts, came to the conclusion as follows;-- 
"Now, an 'obiter dictum' is an expression of opinion on a point,
which is not necessary for the decision of a case. This very definition
draws a clear distinction between a point, which is necessary for the
determination of a case and a point which is not necessary for the
determination of the case. But in both cases points must arise for the
determination of the tribunal. Two questions may arise before a
Court for its determination. The Court may determine both
although only one of them may be necessary for the ultimate
decision of the case. The question which was necessary for the
determination of the case would be the 'ratio decidendi'; the 
opinion of the tribunal on the question which was not necessary
to decide the case would be only an 'obiter dictum'." 
               (Emphasis is supplied)
171. In the light of the observations made above, in Mohandas 
Issardas (supra), it becomes clear that, according to the Bombay High 
 81 
Court, in Mohandas Issardas (supra), two questions may arise before a 
Court for its determination. The Court may determine both, although 
only one of them may be necessary for the ultimate decision of the 
case. The question, which was necessary for the determination of the 
case would be the 'ratio decidendi', but the opinion of the tribunal on 
the question, which was not necessary to decide the case, would be 
only an ‘obiter dictum’. 
 
172. The Full Bench of the Allahabad High Court, in the case of 
Indian Ceramic House Agra vs. Sales Tax Officer (AIR 1971 All 251),  
has also considered and determined  `obiter dictum’ as follows: 
 
“The well-recognized principle of interpretation accepted by the Courts
in England, therefore, is: 
"Any judgment of any Court is authoritative only as to that part of it,
called the ratio decidendi, which is considered to have been necessary to
the decision of the actual issue between the litigants. It is for the Court,
of whatever degree, which is called upon to consider the precedent, to
determine what the true 'ratio decidendi' was..... Judicial opinions
upon such matters, whether they be merely casual, or wholly gratuitous
or (as is far more usual) of what may be called collateral relevance, are
known as 'obiter dictum' or simply 'dicta', and it is extremely difficult
to establish any standard of their relative weight." (Alien in his Law in
the Making). 

 
173. A Constitution Bench of eleven judges of the Supreme Court, in 
H. H. Maharajadhiraja Madhav Rao  vs Union of India (1971 AIR 
530), had the occasion to consider the scope of ‘obiter dictum’ and 
observed as under: 
 82 
“Every observation of this Court is no doubt, entitled to weight
but an obiter, cannot take the place of the ratio. Judges are not
oracles. In the very nature of things, it is not possible to give the
same attention to incidental matters as is given to the actual
issues arising for decision. Further much depends on the way the
case is presented to them.” 
In the State of Orissa v. Sudhansu Sekhar Misra and Ors. 1968
AIR 647: 1968 SCR (2) 154 dealing with the question as to the
importance to be attached to the observations found in the judgments of
this Court. This is what this Court observed 
“A decision is only an authority for what it actually decides. What is of
the essence in a decision is its ratio and not every observation found
therein nor what logically follows from the various observations made
in it.”  
      (Emphasis is supplied) 
174. The Supreme Court, in Arun Kumar Aggarwal vs State Of M.P. 
& Ors. (AIR 2011 SC 3056), has considered the concept of ‘obiter 
dictum’ in the following words: 
“21. At this stage, it is pertinent to consider the nature and scope of a
mere observation or obiter dictum in the Order of the Court. The
expression obiter dictum or dicta has been discussed in American
Jurisprudence 2d, Vol. 20, at pg. 437 as thus:  
‘Dicta’ 
Ordinarily, a court will decide only the questions necessary for
determining the particular case presented. But once a court acquires
jurisdiction, all material questions are open for its decision; it may
properly decide all questions so involved, even though it is not
absolutely essential to the result that all should be decided. It may, for
instance, determine the question of the constitutionality of a statute, 
although it is not absolutely necessary to the disposition of the case, if
the issue of constitutionality is involved in the suit and its settlement is
of public importance. An expression in an opinion which is not
necessary to support the decision reached by the court is dictum or
obiter dictum. 
 83 
‘Dictum’ or ‘obiter dictum’ is distinguished from the ‘holding of the
court in that the so- called law of the case’; does not extend to mere
dicta, and mere dicta are not binding under the doctrine of stare decisis, 
As applied to a particular opinion, the question of whether or not a
certain part thereof is or is not a mere dictum is sometimes a matter of
argument. And while the terms ‘dictum’ and ‘obiter dictum’ are
generally used synonymously with regard to expressions in an opinion
which are not necessary to support the decision, in connection with the
doctrine of stare decisis, a distinction has been drawn between mere
obiter and ‘judicial dicta’ the latter being an expression of opinion on a
point deliberately passed upon by the court. (Emphasis supplied). 
Further at pg. 525 and 526, the effect of dictum has been discussed: 
“190. Decision on legal point; effect of dictum  ... In applying the
doctrine of stare decisis, a distinction is made between a holding and a
dictum. Generally stare decisis does not attach to such parts of an
opinion of a court which are mere dicta. The reason for distinguishing a
dictum from a holding has been said to be that a question actually
before the court and decided by it is investigated with care and
considered in its full extent, whereas other principles, although
considered in their relation to the case decided, are seldom completely 
investigated as to their possible bearing on other cases. Nevertheless
courts have sometimes given dicta the same effect as holdings,
particularly where ‘judicial dicta’ as distinguished from ‘obiter dictum’
are involved” 
22. According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed.
2005), the expression ‘observation’ means a view, reflection; remark;
statement; observed truth or facts; remarks in speech or writing in
reference to something observed. 
23. The Wharton's Law Lexicon (14th Ed. 1993) defines term `obiter
dictum' as an opinion not necessary to a judgment; an observation as
to the law made by a judge in the course of a case, but not necessary to
its decision, and therefore of no binding effect; often called as obiter 
dictum, ; a remark by the way. 
24. The Blacks Law Dictionary, (9th ed, 2009) defines term `obiter
dictum' as a judicial comment made while delivering a judicial 
opinion, but one that is unnecessary to the decision in the case and
therefore not precedential (although it may be considered persuasive). --
Often shortened to dictum or, less commonly, obiter. Strictly speaking
an `obiter dictum' is a remark made or opinion expressed by a judge, in
his decision upon a cause, `by the way' -- that is, incidentally or 
collaterally, and not directly upon the question before the court; or it is 
 84 
any statement of law enunciated by the judge or court merely by way of
illustration, argument, analogy, or suggestion.... In the common speech
of lawyers, all such extrajudicial expressions of legal opinion are
referred to as `dicta,' or`obiter dictum,' these two terms being used
interchangeably. 
25 The Word and Phrases, Permanent Edition, Vol. 29 defines the
expression `obiter dictum' or `dicta' thus: 
‘Dicta are opinions of a judge which do not embody the resolution or
determination of the court, and made without argument or full
consideration of the point, are not the professed deliberate
determinations of the judge himself; obiter dictum are opinions uttered
by the way, not upon the point or question pending, as if turning aside
for the time from the main topic of the case to collateral subjects; It is
mere observation by a judge on a legal question suggested by the case
before him, but not arising in such a manner as to require decision by
him; ‘Obiter dictum’ is made as argument or illustration, as pertinent 
to other cases as to the one on hand, and which may enlighten or
convince, but which in no sense are a part of the judgment in the
particular issue, not binding as a precedent, but entitled to receive
the respect due to the opinion of the judge who utters them;
Discussion in an opinion of principles of law which are not pertinent, 
relevant, or essential to determination of issues before court is ‘obiter
dictum’. 
26. The concept of ‘Dicta’ has also been considered in Corpus Juris
Secundum, Vol. 21, at pg. 309-12 as thus:  
Dicta, In General 
A Dictum is an opinion expressed by a court, but which, not being
necessarily involved in the case, lacks the force of an adjudication; an
opinion expressed by a judge on a point not necessarily arising in the
case; a statement or holding in an opinion not responsive to any issue
and not necessary to the decision of the case; an opinion expressed on a
point in which the judicial mind is not directed to the precise question 
necessary to be determined to fix the rights of the parties; or an opinion
of a judge which does not embody the resolution or determination of the
court, and made without argument, or full consideration of the point,
not the professed deliberate determination of the judge himself. The
term ‘dictum’ is generally used as an abbreviation of ‘obiter dictum’
which means a remark or opinion uttered by the way. Such an
expression or opinion, as a general rule, is not binding as authority or 
precedent within the stare decisis rule, even on courts inferior to the 
court from which such expression emanated, no matter how often it 
 85 
may be repeated. This general rule is particularly applicable where
there are prior decisions to the contrary of the statement regarded as
dictum; where the statement is declared, on rehearing, to be dictum;
where the dictum is on a question which the court expressly states that
it does not decide; or where it is contrary to statute and would produce
an inequitable result. It has also been held that a dictum is not the ‘law
of the case’ nor ‘resjudicata’ 
27. The concept of ‘Dicta’ has been discussed in Halsbury's Laws of
England, Fourth Edition (Reissue), Vol. 26, para. 574 as thus: 
“574. Dicta. Statements which are not necessary to the decision, which
go beyond the occasion and lay down a rule that it is unnecessary for
the purpose at hand are generally termed ‘dicta’. They have no binding
authority on another court, although they may have some persuasive
efficacy. Mere passing remarks of a judge are known as ‘obiter dictum’,
whilst considered enunciations of the judge's opinion on a point not
arising for decision, and so not part of the ratio decidendi, have been
termed ‘judicial dicta’. A third type of dictum may consist in a
statement by a judge as to what has been done in other cases which
have not been reported. 
... Practice notes, being directions given without argument, do not have 
binding judicial effect. Interlocutory observations by members of a
court during argument, while of persuasive weight, are not judicial
pronouncements and do not decide anything” 
28. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1
SCC 101 and Divisional Controller, KSRTC v. Mahadeva
Shetty, (2003) 7 SCC 197, this Court has observed that “Mere casual
expressions carry no weight at all. Not every passing expression of a
judge, however eminent, can be treated as an ex cathedra statement,
having the weight of authority” 
29. In State of Haryana v. Ranbir, (2006) 5 SCC 167, this Court has
discussed the concept of the obiter dictum thus: “A decision, it is well
settled, is an authority for what it decides and not what can logically be 
deduced there from. The distinction between a dicta and obiter is well
known. Obiter dictum is more or less presumably unnecessary to the
decision. It may be an expression of a viewpoint or sentiments which
has no binding effect. See ADM, Jabalpur v. Shivakant Shukla. It is
also well settled that the statements which are not part of the ratio
decidendi constitute obiter dictum and are not authoritative. (See
Divisional Controller, KSRTC v. Mahadeva Shetty)” 
30. In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, 
this Court has held: 
 86 
“Thus, observations of the Court did not relate to any of the legal
questions arising in the case and, accordingly, cannot be considered as
the part of ratio decidendi. Hence, in light of the aforementioned
judicial pronouncements, which have well settled the proposition that
only the ratio decidendi can act as the binding or authoritative
precedent, it is clear that the reliance placed on mere general
observations or casual expressions of the Court, is not of much avail to
the respondents.” 
31. In view of above, it is well settled that obiter dictum is a
mere observation or remark made by the court by way of aside
while deciding the actual issue before it. The mere casual
statement or observation which is not relevant, pertinent or
essential to decide the issue at hand does not form the part of
the judgment of the Court and have no authoritative value. The
expression of the personal view or opinion of the Judge is just a
casual remark made whilst deviating from answering the actual
issues pending before the Court. These casual remarks are
considered or treated as beyond the ambit of the authoritative
or operative part of the judgment.” 
175. The elaborate discussions on the concepts of ratio decidendi and 
obiter dicta, made in the cases pointed above, can be summarized as 
follows: 
(a) A decision is an authority for what it actually decides. What
is the essence, in a decision, is its ratio and not every observation
found therein nor what logically flows from the various
observations made in the judgment. The enunciation of the
reason or the principles on which a question before a Court has
been decided, is alone binding as a precedent. 

(b) In a given case, two questions may arise before a Court for its 
determination. The Court may determine both, although only
one of them may be necessary for the ultimate decision of the
case. The question, which was necessary for the determination of
the case would be the 'ratio decidendi'.  However, the opinion of 
 87 
 
the tribunal on the question, which was not necessary to decide
the case would be only an 'obiter dictum'.
 
(c) ‘Obiter dictum’ is made as argument or illustration, as
pertinent to other cases as to the one on hand, and which may
enlighten or convince, but which in no sense are a part of the
judgment in the particular issue, not binding as a precedent, but
entitled to receive the respect due to the opinion of the judge
who utters them. 
176. Now, coming to the decisions, relied upon by the learned ASG, it 
appears that the observations, upon which the learned ASG is heavily 
relying, are not even `obiter dictum’ inasmuch as the issue, with regard 
to the constitutional validity of CBI, was neither raised nor argued nor 
even the same has been discussed and decided by the Supreme Court.  
The issue, with regard to the constitutional validity of the CBI, was not 
even ancillary to the issues involved in those cases.  
177. Situated thus, we are clearly of the view that the observations, 
made in the cases of Kazi Lhendup Dorji (supra), Committee for 
Protection of Democratic Rights, West Bengal & Ors (supra), and M. 
C. Mehta (Taj Corridor Scam) (supra), which the learned ASG has 
relied upon, neither dealt with the issues, which we confront, nor 
decided the same.  The decisions, therefore, which the learned ASG has 
referred to, and relied upon, are not applicable to the facts of the 
present case. 
 88 
178. Because of what have been discussed and pointed out above, we 
are satisfied that the appellant has been able to make out a case calling 
for interference with the impugned Resolution, dated 01.04.1963, and 
also with the impugned prosecution of the appellant on the basis of the 
charge-sheet, which has been laid by the CBI, in the Court of the learned 
Special Judge, Assam, Kamrup, and, as a sequel to the conclusions, 
which we have so reached, the impugned judgment and order, dated 
30.11.2007, passed, in WP(C) No.6877/2005, need to be set aside. 
179. In the result and for the reasons discussed above, this appeal 
partly succeeds. We hereby set aside the impugned judgment and 
order, dated 30.11.2007, passed, in WP(C) No. 6877/2005, and while we 
decline to hold and declare that the DSPE Act, 1946, is not a valid piece 
of legislation, we do hold that the CBI is neither an organ nor a part of 
the DSPE and the CBI cannot be treated as a ‘police force’ constituted 
under the DSPE Act, 1946. 
180. We hereby also set aside and quash the impugned Resolution, 
dated 01.04.1963, whereby CBI has been constituted. We further set 
aside and quash the impugned charge-sheet, submitted by the CBI, 
against the appellant and, consequently, the trial, which rests on the 
impugned charge-sheet, shall stand set aside and quashed. 
181. We would, however, make it clear that quashing of the 
proceedings, pending in the CBI Court, would not be a bar to any 
further investigation by police having jurisdiction over the               
subject-matter. 

182. With the above observations and directions, this appeal shall 
stand disposed of. 
183. No order as to costs.